Commission mulls restrictions on platform data use in Digital Services Act 

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Platform giants will be prohibited from using the data they collect online unless they make this data available for use by smaller platforms, according to a draft of blacklisted practices, seen by EURACTIV, as part of the European Commission’s forthcoming Digital Services Act.

The documents unveil a series of potentially ‘unfair’ activities that the Commission would like to double down on.

Prohibition of exclusive use of data

The internal working documents hone in on the activities of so-called ‘gatekeeper’ platforms, the likes of which include Google, Amazon and Facebook. These firms are believed to have acquired a disproportionate level of economic power and control over platform ecosystems.

“Gatekeepers shall not use data generated and collected on the platform or on any of the gatekeepers’ other services for the purpose of its own commercial activities directed at consumers of the relevant platform, unless they are making this data accessible to business users (seeking to become) active in the same commercial activities,” the document states, referring to this specific policy as a ‘prohibition of exclusive use of data.’

Preferential ranking ban

Moreover, the executive charts a series of other prohibitions that are likely to provoke concerns from the platform giants.

In this vein, a ban is also considered on certain ‘self-preferencing’ activities, including a ban on preferential ranking in online search engines or online intermediation services.

In this particular area, the Commission’s considerations are a considerable markup from measures outlined in the EU’s platform-to-business regulation, which entered into force in July 2019 and obliges search engines to be transparent about any preferential treatment they give to their own products and services.

Consumer choice & pre-installation

Moreover, in a direct reference to the anticompetitive practices of eCommerce giants, which often attempt to tie in smaller vendors to exclusive contracts, “gatekeepers shall not restrict the ability of business users to offer the same goods and services to consumers under different conditions through other online intermediation services.”

Elsewhere, the Commission is also weighing up the option of introducing a so-called ‘ban on exclusive pre-installation’ which would see gatekeepers prohibited from pre-installing exclusively their own applications on hardware systems.

In a similar spirit, the document also states that “gatekeepers shall not, through contractual or technical measures or otherwise, prevent users from uninstalling any (of the pre-installed) apps.”

More broadly, the document also considers regulation on auditing advertising metrics and reporting practices, as well as forcing gatekeeper to “submit their consumer profiling practices to an annual audit.”

Greylist

Included in the document is also a potential ‘greylist’ of activities that the executive deems ‘unfair’ and may therefore require greater oversight by a competent authority.

Under this rubric, platform giants will not be able to “prevent third-party sellers from accessing essential information” on customers, and will also be ordered “not to collect personal data beyond what is necessary for the provision of their services”.

In terms of self-referential practices in the greylist, the Commission considers that large tech firms should not “prevent hardware manufacturers from providing their customers and business users with a choice of options for applications/services to be used on/accessed via the hardware.”

Parliament

In Brussels, relevant Parliamentary committees are in different stages of adopting their initiative reports on the Digital Services Act, ahead of the Commission’s presentation of the measures before the end of the year.

Last Tuesday, members of the Civil Liberties Committee backed EPP MEP Kris Peeters’ text, which supported the notion of maintaining the fundamentals of the eCommerce directive, including the limited liability provisions and the ban on general monitoring obligations.

The report also rallied the importance of consumer rights and forms of redress for online actions by automated technologies, as well as greater transparency for online political advertising.

Meanwhile, S&D MEP Alex Agius Saliba’s report in the Internal Market Committee was adopted on Monday. It notes the importance of transparency in seller identifications, as well as reinforcing liability provisions for hosting providers.

On Thursday (1 October), Parliament’s Legal Affairs report, led by S&D’s Tiemo Wölken, will go to the vote.

[Edited by Zoran Radosavljevic]

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