A large majority of MEPs voted in favour of the Digital Services Act on Thursday (20 January), after plenary amendments introduced important changes to the text.
The DSA is horizontal legislation for the digital single market, with transparency requirements and due diligence obligations proportionate to the size of the service provider.
“We have an opportunity to create a new global golden standard for tech-regulation that will inspire other countries and regions,” said Christel Schaldemose, the leading MEP on the file.
While the compromise text brokered in the leading parliamentary committee introduced some significant new elements to the original proposal, further modifications were introduced via last-minute amendments in the plenary vote.
The most significant amendment was tabled by the Tracking-free Ads Coalition, a cross-party group of MEPs that pushes for a ban on targeted ads. As the bid for a total ban was not successful, a compromise was reached only to prohibit the targeting of minors.
The Coalition successfully passed amendments extending the limitation to sensitive personal data such as political and religious beliefs and sexual orientation at the plenary vote.
Moreover, online platforms should not make denying consent for processing personal data more complex than giving it, and refusing consent should not be penalised by disabling functionalities.
A lengthy discussion in the parliament concerned editorial content, which publishers considered platforms should not take it down arbitrarily. The initial proposal for a so-called media exemption was resisted because rogue media outlets might become disinformation vehicles.
The plenary amendments led to mixed results. A provision that allowed publishers to contest platforms’ content moderation decisions was rejected. By contrast, MEPs endorsed a change to the requirements on the terms and conditions, requiring platforms to consider the Charter of Fundamental Rights, including media freedom.
Another amendment tabled by the civil liberties committee (LIBE) specifies that whether terms and conditions violate fundamental rights, they should not be binding for the users.
Traceability of business users
Another important point for discussion throughout the DSA negotiations was to what extent online marketplaces should be responsible for illegal products distributed on their platforms.
The approach is based on the ‘know your business customer’ principle. Namely, platforms are not directly responsible for illegal products, but they have to make ‘best efforts’ to verify the identity of the service providers to ensure they can be legally held accountable.
These information obligations were initially limited to online marketplaces. Still, a plenary amendment changed the text’s preamble extending it to every intermediary service, including several layers of the internet such as domain name registers and content distribution networks.
“It was inserted so rightsholders can sue people easier,” said a parliamentary official that opposed the text, noting that “all information provided by businesses will have to be verified before they can open any website. It will be a bureaucracy nightmare for every business in Europe, big or small.”
Another amendment introducing a new article with a similar provision failed to reach a majority by one vote.
Conservative MEPs managed to get a separate vote on measures against dark patterns (Art. 13a) but were unsuccessful in their attempt to kill the article.
Dark patterns are techniques designed “to distort or impair recipients of services’ ability to make a free, autonomous and informed decision or choice.”
The article explicitly forbids the use of specific techniques to extort consent to collect personal data, for instance, via repeatedly showing pop-ups. It also prevents platforms from requesting such consent if users already choose via ‘automated means’, which might be a setting in the web browser or operating system.
“This would strengthen the gatekeeper role of dominant players and have a disproportionate effect on small publishers,” said Greg Mroczkowski, public policy director at IAB Europe.
The DSA follows an asymmetrical approach, putting in place stricter obligations according to the company’s size. However, to what extent SMEs should be exempted was a hot topic of discussion, as business-minded lawmakers clashed with MEPs more concerned with consumer protection.
In this regard, the industry committee (ITRE) managed to get an amendment that would enable SMEs to join a collective representation after making a ‘reasonable effort’ to obtain a legal representative of their own.
The LIBE committee also managed to get several amendments adopted regarding anonymity online. The provisions require platforms to enable users to use and pay for services anonymously “wherever reasonable efforts can make this possible.”
The European Parliament is the last co-legislator to adopt the DSA, as the EU Council reached its position in November. There are currently five political trilogues scheduled, on 31 January, 22 February, 15 March, 24-25 March and 6-8 April.
[Edited by Alice Taylor]