The Digital Services Act (DSA) ties its obligations to the concept of a "service of the information society" as defined in Article 1(1)(b) of the EU Directive 2015/1535.
"b) 'service' means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services."
In our opinion, the TI-Messenger, which is made available to insured persons through their respective health insurance company, does not constitute a service of the information society. Therefore, the TI-Messenger for insured persons does not fall under the scope of the DSA in our view.
If one were to assume the applicability of the DSA, the provisions of the DSA would apply to the TI-Messenger only to a limited extent, as the TI-M is an intermediary service with a mere conduit function as per Article 3(g), (i) DSA. For such intermediary services, there is a liability privilege (Article 4(1) DSA), and intermediary services are only regulated to a limited extent under the DSA.
This includes, among other things, requirements for terms and conditions regarding content moderation, the clear formulation of content, and communication of changes (Article 14 DSA). Furthermore, providers of intermediary services are required to designate a contact point for regulatory authorities (Article 11 DSA) as well as for users (Article 12 DSA). In our assessment, Article 15 DSA does not apply.
Disclaimer
Please note that the above representation is a non-binding legal assessment by gematik GmbH. Gematik is not authorized to provide legal advice. Each organization should therefore independently verify the extent to which legal frameworks apply to them or the services they offer.