European Commission releases key proposals: Digital Services Act and Digital Markets Act

On the 15th of December 2020, the European Commission launched its long-awaited reform on the regulation of major online platforms, the Digital Services Act (DSA). This comes alongside a proposal named the Digital Markets Act (DMA) which aims to address concerns about competition (or a lack thereof) in the technology sector and its impacts.

At the beginning of its mandate, the European Commission made a commitment to reform several aspects of the European market with regards to illegal online content and issues of competitiveness of major platforms online.

As part of this process, in June and September 2020, IFLA submitted suggestions and recommendations on the Digital Services Act to underline the interests of libraries as users of online services and to address their needs and expectations regarding the continuity of their core missions: provide an effective access to information and foster freedom of expression.

Initially combined within a single reform, the European Commission has finally decided to tackle these subjects independently. After several months of waiting, the European Commission launches its reform with two documents: the Digital Services Act and the Digital Markets Act.

The Digital Services Act: regulation of illegal content

The Digital Services Act reform aims to improve the single market within the European Union by developing a more coordinated response to illegal contents online. In doing so, it sets out the goals of maintaining the balance between tackling such content with protection of the fundamental rights of users, and facilitating the development of a competitive single market online.

20 years after the e-Commerce directive which established, among other things, the concept of exemption from liability of intermediary service providers, the new regulation proposes to maintain this key concept.

Online service providers will, if the proposal remains as it is, remain exempt from accountability in order to maintain and support citizens’ ability to express themselves and access information online.

This appears welcome.

To do so, they will need to make efforts to address illegal content, including efforts to prevent its reappearance. This includes violent and/or discriminatory contents relating to race, gender, age, religion.

For example, the DSA establishes due diligence obligations for flagging illegal content for all intermediary services with regards to the size and type of platforms.

The DSA also mentions that contents will not be controlled prior to publication, thus respecting the right of users to express themselves online. However, this leaves open many questions about the technical aspects that the implementation of this reform will take.

Regarding the process of takedown notices, the support of the Commission for a balanced judicial process is welcome. IFLA has strongly underlined the importance of respecting fundamental rights in the process of moderation of content, to let citizens benefit from their rights equally online and offline. Linked to this topic, the call for transparent and independent processes is also welcome.

The proposals evoke the possibility of national action in addition to European. While some issues will be developed at EU level, Member States are invited to develop national regulatory authorities for the digital space, with the power to order intermediaries to take content offline, and impose financial penalties.

Overall, the European Commission’s proposals seem welcome, given that they recall the importance of the protection of fundamental rights (e.g freedom of expression and freedom of access to information), the concept of online anonymity, and the importance of “transparency, information obligations and accountability of online service providers”.

The Digital Markets Act: competition regulation of “core platform services”

The Digital Markets Act mainly concerns major online platforms, also called “systemic stakeholders” that act as an intermediary between businesses and users, with the aim of limiting anti-competitive practices.

These include online intermediation services such as:
search engines
social networking
video sharing platforms services
number-independent interpersonal electronic communication services
operating systems
cloud services
and advertising services.

The objective is simple: to foster the emergence of new companies by addressing the harmful effects of monopolistic behaviour by major players online through measures that promote competition.

These proposed measures differentiate between two aspects of major platforms’ positions: the first one as a provider of a service to another business (for example one selling its products through an online marketplace) and the second as the provider of a service potentially in in competition with the same business , potentially enjoying an unfair advantage thanks to the data it gathers through its role as a service provider.

The views of the European Commission regarding proportionality, promoting “innovation, high quality of digital products and services, fair and competitive prices, and free choice for users in the digital sector” are welcome. A greater variety of platforms and offers of information and other services is likely to facilitate the work of libraries.

The concept of interoperability is also recognised as important and small and medium sized enterprises must be able to migrate to competing services. Nevertheless, little is said about individual users.

Good perspectives but a long way to go before a definitive document

IFLA continues to study these documents and remains aware that a deeper analysis is necessary in order to provide helpful solutions to next steps.

With the retention of the concept of exemption from the liability principle of global platforms and targeted recommendations to address a balanced EU response between user rights, respect for fundamental rights, and concepts of competitiveness, this is a welcome proposal.

We encourage the European Commission to consider in depth interoperability issues which impact on individual citizens. Libraries deeply support fundamental rights, including the ability of citizens to choose freely themselves, including online.

However, the devil always lies in the details and reflection on the technical aspects of such suggestions to achieve these objectives does not mean effective practical realisation.

Read more about it:  here, here and here, here, here

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