From advertising revenue to content moderation, the EU’s Digital Services Act (DSA) is set to shape a number of areas in which media industry actors have been calling for change, particularly in their relation to online platforms.
The DSA is a key legislative proposal aimed at regulating online content and services. While the initiative has been broadly welcomed by Europe’s media sector, a number of recommendations for its improvement remain.
This week, a joint letter from a number of leading media industry organisations voiced support for measures to increase the responsibility and accountability of global online platforms, which wield increasing power in the online environment.
Content moderation and editorial responsibility
The gateway function of large online platforms is of particular relevance to the media sector, given the important role they play in offering content to audiences. Beyond just the moderation of illegal content, media actors have called for better regulation of platforms’ power to remove or restrict access to information and content.
In a statement released this week, the European Federation of Journalists (EFJ) called for operators to be stopped from exercising any control over journalistic content available on their platforms, saying “it cannot be that gatekeepers platforms would entrench their control over the formation of opinion online.”
The DSA proposal includes a number of provisions for increasing the transparency of platforms’ content moderation functions, as well as their recommendation systems, which have the power to shape the information audiences have access to.
While these moves may make it easier for providers to understand when and why their content has been taken offline, concerns remain over the fact that platforms may impose their own terms and conditions on, and remove or restrict access to, content that is legal and has already undergone rigorous editorial scrutiny.
Wouter Gekiere, head of the European Broadcasting Union’s Brussels office, told EURACTIV that many EBU members had seen their content taken down despite its compliance with both EU and national laws. This was due, he said, to the “unfettered application of terms and conditions of online platforms”, an area which he said the DSA has not adequately addressed.
“Platforms are major companies but don’t hold editorial responsibility, whereas press publishers and media companies do. We feel there’s a tension there and that the Digital Services Act is a good moment to address the rebalancing that is needed,” he added.
The European Publishers Council (EPC) echoed this, telling EURACTIV that they would like to see provisions in place to prevent platforms from blocking or restricting access to legal professional journalistic content, including as part of efforts to comply with their own obligations under the DSA.
The proposal also has implications in the area of copyrights. The DSA is a piece of horizontal legislation, intended to harmonise rules across the EU, meaning that it complements rather than replaces existing sector-specific laws.
Of particular relevance to the media sector in this regard is the controversial Copyright Directive, which has drawn a legal challenge from Poland at the European Court of Justice and widespread protests, particularly over its inclusion of automatic content recognition tools.
When it comes to copyright liability, the new legislation rewords the safe harbour provisions of the e-Commerce directive, which were adopted in 2000. While these state that platforms are legally exempted from copyright liability if undertaking a “passive” intermediary role, the DSA replaces the idea of “passivity” with that of “neutrality”.
However, an ECJ ruling on Tuesday (22 June) found that contrary to the DSA’s conclusion that the safe harbour principle also applies in cases where the platforms have actively participated in the breaching of copyrights, it is actually only applicable when the platforms’ role was found to be “merely technical, automatic and passive”.
This suggests that the legislation’s rewording may have little impact when it comes to platforms’ copyright liability.
Transparency and advertising
The DSA proposal also introduces a number of provisions related to advertising, complementing measures already in place, such as the General Data Protection Regulation (GDPR).
A particular focus of these provisions is increasing the transparency of online advertising for users, especially for the largest platforms, which face specific requirements under the proposal, given the systemic implications of their behaviour.
The EU’s data protection supervisor called earlier this year for the DSA to include a ban on targeted advertising, arguing that the proposal’s transparency measures were not enough.
Earlier this month, the Interactive Advertising Bureau, a European association for digital advertising, described such a measure as “illusory” and likely to aggravate existing market imbalances, arguing that in the context of the DSA’s focus on transparency, a ban would be “extreme and unnecessary.”
The European Publishers Council told EURACTIV it supports the DSA’s approach to advertising transparency.
However, they noted that advertising and marketing remain for many publishers one of the only ways to finance journalistic work, and cautioned that any further restrictions risk “endangering the sustainability and plurality of press in Europe.”
They also raised concerns about the DSA’s “Know Your Business Customer” obligation, which requires online marketplaces to be able to trace and verify the identities of their traders, to prevent fraudulent or illegal sales.
The EPC noted that the obligation doesn’t apply to large platforms, other than marketplaces, and does not differentiate between different sizes or types of marketplaces.
Publishers marketplaces, they said, “provide an essential source of revenue for the financing of journalistic content and do not pose the same level of risk as those hosted by the platforms.”
[Edited by Luca Bertuzzi]