Stakeholders jockey for influence in EU’s bid to regulate digital services

As part of public consultations which closed at midnight on Tuesday (September 8), industry behemoths and lobbies, civil society representatives, charities, public authorities, and academics all took the opportunity to have their say on the EU's bid to radically transform the regulatory landscape for digital services, both as part of the DSA and the foreseen 'New Competition Tool.'

As part of public consultations which closed at midnight on Tuesday (September 8), industry behemoths and lobbies, civil society representatives, charities, public authorities, and academics all took the opportunity to have their say on the EU's bid to radically transform the regulatory landscape for digital services, both as part of the DSA and the foreseen 'New Competition Tool.' [Shutterstock]

A broad spectrum of stakeholders have spoken out on EU plans to regulate the online ecosystem as part of its forthcoming Digital Services Act (DSA) package, with fierce jockeying over the extent to which the EU will introduce new rules for the digital economy.

As part of public consultations which closed on Tuesday (September 8), industry behemoths and lobbies, civil society representatives, charities, public authorities, and academics took the opportunity to have their say on the EU’s bid to radically transform the regulatory landscape for digital services, both as part of the DSA and the foreseen ‘New Competition Tool.’

The Digital Services Act represents the EU’s most ambitious plan to regulate online services, and will cover areas of the platform economy ranging from liability, market dominance, and online advertising, to safety, smart contracts, online self-employment, and future governance frameworks.

The new competition tool, meanwhile, will be designed to mitigate structural risks in markets and intervene in situations whereby a market is close to ‘tipping.’

This refers to the situation where one company obtains high monopoly profits and market share, creating an anti-competitive environment for other firms, and is common in the digital economy among gatekeeper platforms with network effects.

The EU executive is due to present the plans before the close of the year, and stakeholders have been keen to rally to make their voice heard on the key issues.

For their part, the tech giants such as Google resisted the notion of introducing ex-ante regulation for gatekeeper platforms, saying that this could have ‘unintended consequences’ for European businesses.

In terms of liability, the firm believes that the ‘core principles’ of the 2000 e-Commerce directive, the precedent to the Digital Services Act, should be maintained, particularly the country-of-origin principle, but a liability regime for illegal content should be introduced.

Search engine rival Mozilla came out with a strong position on advertising obligations, saying that in the name of transparency and accountability, large platforms should be mandated to “disclose all advertising content and accompanying targeting parameters.”

Industry lobby EDiMA adopted an analogous stance to Google, highlighting the need to treat illegal and harmful content differently, maintaining the key principles of the eCommerce directive, and introducing a regime of ‘legal certainty, safeguards and incentives’ for online service providers to take measures to actively protect users from nefarious content.

This parallels quite closely with what Facebook is calling for, which includes a new framework for dealing with content that is not illegal, but harmful. The social media giant has also called for “a single standard of actual knowledge of illegality” for both catching and hosting services, with regards to a platforms’ awareness of illegal activities taking place online.

On illegal content, US NGO the Counter Extremism Project said that “algorithms on social media and video sharing platforms still do prioritize harmful or illegal content, and in some cases are even amplifying terrorist and violent extremist propaganda”. As a result, transparency obligations should be imposed on how such algorithms operated, the group believes.

Meanwhile, Microsoft sought to get its point across on the difficulty of identifying ‘gatekeeper platforms,’ saying that ‘the regulation should set an exacting and high threshold that only a few platforms likely meet.’

On the other side of the coin, consumer rights group BEUC favours the creation of a blacklist of prohibitions and of targeted obligations “comprising a defined list of comprehensive, self-enforcing and regularly reviewable prohibitions and obligations for large online platforms acting as gatekeepers.”

The European Digital Rights organization EDRi noted that the advertising admission process for large online platforms is insufficient, and needs further scrutiny.

However, the group also renewed their commitment to supporting freedom of expression online and said that “any attempt to weaken the current legal liability regime while pushing intermediaries to “take more responsibility” for online expression inevitably leads to the systematic over-removal of legitimate speech by commercial Big Tech companies.”

On competition, the Wikimedia foundation said that ‘walled gardens’ are created from a lack of market diversity in the platform economy, and this can hinder content “from being fully shared or discovered across different platforms, including in the digital commons.”

In order to mitigate such closed ecosystems, the French Electronic Communications authority Arcep said that ex-ante regulation is required that would target a “few highly influential, clearly identified players, to liberate the Web in a way that benefits everyone.”

One particular remedy to this, Arcep said, could be to impose interoperability requirements between platforms.

Meanwhile, EU telecoms regulator BEREC was keen to dilute the scope of the new regulatory measures, saying it is “important to stress that such ex-ante intervention would not be aimed at regulating all digital platforms, nor the internet as a whole, but at tackling specific concerns raised by digital platforms with significant intermediation power.”

In a similar message from the telecoms world, a joint statement from GSMA and ETNO noted that regulation should be concentrated to “hosting services that play an ‘active’ role in the dissemination of content online or share such content with a broad audience.”

The media sector, meanwhile, came out with a series of strong messages, noting the damage done to publishers’ profit margins by the business models of platforms. Trade association News Media Europe supported a ‘strengthened secondary liability framework for intermediaries that acknowledges differences between content hosts and content producer.’

Moreover, NME also supported the notion of improving the eCommerce liability framework, stating that “a certain degree of monitoring obligation is desirable and necessary to make platforms more accountable towards business partners, public authorities and most importantly the safety of users.”

Industry organisation ECommerce Europe is concerned about the increased flow of unsafe products emanating from non-EU countries, coming into the EU.

“While EU-based players have to comply with European and national rules and standards, not all non-EU operators that offer or facilitate the sales of goods to European consumers do or have to,” the group said.

The European Commission’s Vice-President for Digital, Margarethe Vestager, has previously said that counterfeit and illegal sellers are likely to be targeted in the digital services act.

Staying in the e-Commerce world, workers’ unions UNI Global and UNI Europe levelled a series of accusations at Amazon and welcomed the Commission’s introduction of a new competition tool and ex-ante regulation as part of the Digital Services Act to “correct market dysfunctions and benefit sellers, consumers and workers alike.”

Elsewhere in Brussels, EURACTIV obtained a copy of recent amendments made by rapporteur Alex Agius Saliba to the Internal Market Committee’s report on the digital services act.

While no substantive changes were made, Saliba introduced the importance of complying with the principle of data minimisation as outlined in the EU’s general data protection regulation.

“Intermediaries of digital services should enable to the maximum extent possible the anonymous use of their services,” one such amendment read.

[Edited by Zoran Radosavljevic]

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