In light of receiving a new mandate for a meeting with EU ambassadors on Wednesday (30 March), the French Presidency of the European Council proposed a compromise on some critical issues of the Digital Services Act (DSA) to the other member states.
The compromise tries to accommodate the European Parliament’s position on protecting minors, sensitive data, online marketplaces, the definition of very large online platforms and obligations related to systemic risks ahead of the political trilogue on Thursday.
Targeted advertising is at the top of the political agenda, following a political agreement reached during the last negotiating session on the Digital Markets Act, the DSA’s sister proposal, as announced at a press conference by French state secretary for digital Cédric O on Friday (25 March).
“Providers of very large online platforms shall not present advertising to minors based on profiling within the meaning of Article 4(4) of Regulation 2016/679 when they are aware that the recipient of the service is a minor,” reads the text for a new article (Art. 30a), developed by the European Commission.
At the same time, the platform should not process additional information to assess the user’s age. This text is reinforced with an addition to the preamble of the text (recital 63) that explains the obligation only applies to platforms “when they are aware that the recipient of the service is a minor.”
The rationale is that, in line with the data minimisation principle of the General Data Protection Regulation (GDPR), the EU data protection law, platforms should not be incentivised to collect the users’ data before using the service.
These provisions would substitute the MEP’s text that mandated for all platforms a ban on targeted advertising for minors and that refusing consent for the processing of personal data should not be more complicated than giving it.
The issue of how to ensure minors are identified is key in the discussion of targeted ads. An EU diplomat told EURACTIV that the Parliament’s text is “full of holes” and accused lawmakers of being indifferent about how the rules would work in practice.
Several countries, including Denmark, Germany, Italy and Spain, are supporting stricter measures to protect minors. Still, the member states are faced with the practical problem that the text does not contain a definition of minors.
As the definition of minors under national law might vary across the bloc – for instance, 16-year-olds are allowed to vote in Estonia – it might result in a difference in application across the bloc, against the single market.
Another addition to the text’s preamble refers to sensitive information, including race, political opinions, religious beliefs, specifying that this data should be processed in compliance with the GDPR. By contrast, the Parliament’s text asked to forbid the processing of this sensitive data for targeting techniques.
“It’s an encouraging positive surprise that the Council fully follows its mandate and is prepared to push back in a forceful manner on the ad-related points brought by the Parliament,” said a business stakeholder who talked to EURACTIV under the condition of anonymity.
For the EU diplomat, the protection of minors was not fully covered by this new text, stressing that the upcoming trilogue might mark some progress but not be a decisive one.
More topics on the agenda
As reported by EURACTIV last week, the French Presidency is seeking a new partial mandate on which more details were provided in a note dated 25 March, seen by EURACTIV.
For online marketplaces, the Presidency proposed to make explicit that the vendors are the only ones responsible for providing truthful information and that platforms would have to make their ‘best efforts’ to obtain the relevant information from business users within one year from the entry into force.
However, EU countries are concerned about how these provisions interact with existing consumer protection rules.
Regarding designating very large online platforms, those with more than 45 million users in the EU, the Presidency wanted to clarify the methodology for counting active users to avoid double counting.
The original proposal mandated very large online platforms to analyse and mitigate systemic risks related to disseminating illegal content, adverse effects on fundamental rights, and manipulation intention.
The French government is proposing adding a fourth category that, in line with the Parliament’s proposal, would cover any potential or actual adverse effects linked to gender-related violence, public health, minors and the physical and mental wellbeing of persons.
Platforms would have to allow users to specify when uploading content whether it is a deep fake, namely if the content was manipulated so that a person appears as someone else.
The compromise text would also clarify that the risk analysis would be proportionate to the risks associated with the platform, which will need to consider the language and regional specificities.
According to a second diplomatic source, the trilogue might decide whether the systemic risk provisions should be extended beyond the very large online platforms, as certain member states consider that the risk-based approach might not be enough.
[Edited by Nathalie Weatherald]