Anna Mazgal

Digital Principles by European Commission: too little, too late?

As abstract as they may seem, we shouldn’t underestimate the power of grand narratives in policy making. They help people make the meaning of events that otherwise seem as random as the weather and assess how effectively actions respond to objectives that the narrative sets. It therefore makes a lot of sense that the European Commision comes up with a plan for a Declaration of Digital Principles accompanied by a “Digital Compass”. But why only now? And why such a scope? And is all this enough to give the EU citizens a greater meaning of the role that the EU may have in shaping their online experiences? 

“The failure of imagination”

The European Commission from time to time takes seriously the need to create a grand narrative to help communicate its policy goals – and then underdelivers in practice. It is visible in the notion of “promoting our European way of life”, a framing that made its way into the official list of priorities of the Commission in the current legislative term. Not only is it a disappointing nod to the right-wing rhetoric of “Europe under siege”, but it also hardly means anything as we Europeans are rather beautifully different in how we choose to shape our ways of life. In fact In varietate concordia (Latin for United in diversity), the official motto of the EU fits us much better.

Another example is the Digital Single Market framework (DSM), which seems to make sense as to its core objective – removing online barriers in access to goods and services across the European Union. The problem is that the market does not exist in separation from the people, their needs, aspirations, and structural barriers they encounter in access to public and private services, in creating non-monetary value for themselves and for others, and finally in reaching out one another in a way that nurtures public debate and European cohesion. 

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DMA: IMCO targets GAFAM, forgets interoperability

We’ve seen the draft report on the Digital Markets Act from the leading Committee, and we are not impressed. Rapporteur Andreas Schwab imagines the DMA as a tool to take swift action against the biggest players in online markets. But the key issues that could help consumers, about whom the Committee for Internal Market and Consumer Protection should be most concerned, remain unresolved.

The usual suspects

The German Christian-Democrat MEP’s vision of the DMA targets the biggest platforms, by raising quantitative thresholds of how rich and popular one has to be to qualify as a gatekeeper. A quick check of whose annual EEA turnover is €10 billion in the last three financial years or market capitalisation is at least €100 billion in the last financial year, and which services have over 45 million monthly users, reveals that Schwab is targeting the GAFAM (Google, Apple, Facebook Amazon, Microsoft).

The rumour in town is that platforms such as booking.com don’t want to be bound by the same regulatory measures as the giants that are bigger and wealthier by an order of magnitude, and… that originate from the US. This could be considered beneficial, if one views only the five to be the source of most online evils. Except that it is not entirely future-proof if a new core service emerges and does a lot of damage before they actually reach the high financial thresholds. Not to mention that such an approach further entrenches the online ecosystem in which online intermediation is practically divided among the five companies. 

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Antiterrorists in a bike shed – policy and politics of the Terrorist Content Regulation

co-authored by Diego Naranjo, Head of Policy at EDRi

Analysis

In the second installment of series of longer features on our blog we analyse the political process around the terrorist content debates and key factors influencing the outcome.

The short story: an ill-fated law with dubious evidence base, targeting an important modern problem with poorly chosen measures, goes through an exhausting legislative process to be adopted without proper democratic scrutiny due to a procedural peculiarity. How did we manage to end up in this mess? And what does it tell us about the power of agenda setting the name of the “do something” doctrine?

How it started – how it’s going

A lot of bafflement accompanied the release of the Terrorist content regulation proposal. The European Commission published it a few days after the September 2018 deadline to implement the Directive on Combating Terrorism (2015/0625). It is still unclear what the rush was with the regulation if the preceding directive hadn’t got much traction. At that time, only a handful of Member States met the deadline for its implementation (and we don’t see a massive improvement in implementation across the EU to this day). Did it have to do with the bike-shed effect pervading modern policy-making in the EU? Is it easier to agree on sanitation of the internet done mostly by private corporate powers, than to meaningfully improve actions and processes addressing terrorist violence in the Member States?

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TERREG adopted without a final vote – what to expect and what it means

The Regulation on addressing the dissemination of terrorist content online (TERREG) has been adopted without a final vote thanks to a peculiarity in European Parliament procedure. The dangers of content filtering, over-policing of content by state and private actors, and the cross-border prerogatives for governments will now become law without a final stamp from the elected representatives of the European citizens.

What happened (and what didn’t)

A Plenary debate had been scheduled to discuss the draft legislation one last time. However, the voting list released for the Terrorist Content Regulation specified it would be approved without a final vote. A text that goes into so-called “second reading” – as the file in question was – is considered “approved without vote”, unless one of the political groups expressly requests a plenary vote. None of them did, so TERREG is considered as passed.

UPDATE: TERREG was published in the Official Journal of the EU on May 17th 2021. It enters into force 20 days from publication (June 7th 2021). It will apply from June 7th 2022.

On April 20th, LIBE  adopted what is now the final text with 52 Members of the European Parliament (MEPs) in favour of the draft legislation, including the Dutch MEP Sophia in ‘t Veld, a powerhouse in privacy and fundamental rights debates in the European Parliament. The 14 votes rejecting it came from members of the Greens with the TERREG Shadow Rapporteur Patrick Breyer at the helm, and the Left. 

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Sanctioning the giants – will the internet be better with the Digital Markets Act?

Many would agree that the issues plaguing the online ecosystem are too many to fix for one act of law. So the European Commission drafted two legislative proposals: the long expected Digital Services Act (DSA) and the Digital Markets Act (DMA). Will the DMA prove to be an adequate instrument in the efforts to improve competition in the digital market? Or is it a missed chance to fix structural problems in access to information and knowledge?

The rogues are rogue because we let them

It was not a secret that a regulatory push in the realm of competition was considered by the European Commission. First, because of the multiple probes into practices by big tech, which have been launched by the EC in recent years. Second, because Margrethe Vestager, the Commissioner for Competition and EU’s Executive Vice-President responsible for A Europe Fit for the Digital Age had said so. Third and finally, because it is enough to look at a handful of internet companies which, rather than competing on the market, create global markets of their own, to see that some sort of intervention could benefit users and businesses alike.

The European Union offers a unique environment, where regulating a market influences all 27 Member States and almost 448 million people. Therefore, even globally operating companies will accept a legislative “offer” imposed across the federated part of the continent, even if it is tough on them.

UPDATE: we submitted feedback to the EC consultations on DMA

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Dear MEPs, say NO to terrorist Content Regulation

We have the date of the final TERREG vote – it will happen during the Plenary of the European Parliament, on April 28. The MEPs will be presented with a regulation that is too blurry, too broad, and that infringes too much on our right to express political views and to access information. Together with EDRi, Access Now, Civil Liberties Union for Europe and over 60 other organisations, we urge the MEPs to stand on the right side of history and reject this proposal.

In the open letter, 60+ human rights organisations and journalist federations cite the danger of content filtering, the overpolicing of content by state and private actors, and the cross-border prerogatives as main reasons why the proposal should be rejected.

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TERREG: trilogue brings compromise in final weeks of German Presidency

Perhaps it was it the perspective of “losing face” by transferring this hot potato of a proposal to the next Presidency that created the pain point to press with the hosts of the negotiations. The European Parliament delegation managed to get quite a few of the issues they wanted ironed out and there will be no more trilogue on the proposal for the terrorist content regulation.

We bring you an update on what is the final outcome of the negotiations, what happens next, and a bit of a summary of what it means for us Wikimedians and for the world at large.

Successes and problems

1. Exception for journalists, artistic and educational purposes

Under pressure from the EP, journalist associations, and (hopefully) us, the doubtful legitimacy check of what is journalism, artistic expression or accepted research has been dropped. Article 1(2)(a) will exclude material disseminated for educational, journalistic, artistic or research purposes from the scope. Moreover, purposes of preventing or countering terrorism shall not be considered terrorist content including the content which represents an expression of polemic or controversial views in the course of public debate. Sounds like the most obvious obviousness, but hey – Twitch already deletes content denouncing terrorism to avoid the trouble. This provision plus those pointing at respecting fundamental rights while implementing measures can be interpreted in a way that actually coerces Twitch to stop deleting it.

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Upside-down: is all content terrorist until determined otherwise?

The German Presidency of the EU is accelerating the Trilogue negotiations around the terrorist content regulation (TERREG). Yet, faster doesn’t always mean better, as the German compromise text proves. The most disturbing ideas in the compromise pose an attack on freedom and pluralism of the media and of arts and sciences. Is the new text a lapse of judgment or a glimpse into how a modern EU government envisions its powers over democratic discourse and the role of tech in it?

Media and arts with the seal of approval of governments?

One of the issues with the proposal for a regulation to prevent the dissemination of terrorist content online was, from the beginning, a blurry definition of what constitutes “terrorist content”. The German Presidency proposes to exclude materials disseminated for educational, journalistic, artistic or research purposes from that definition under the condition that “the dissemination of the information is protected as legitimate exercise of freedom of expression and information, the freedom of the arts and sciences as well as the freedom and pluralism of the media”. 

This raises questions about what may or may not constitute “legitimate journalism” or “legitimate artistic expression.” And, importantly, about who gets to decide what is legitimate reporting or legitimate educational purpose. As the proposal stipulates so far, it will not be the court deciding, but competent authorities in each Member State and also the internet platforms hosting the content. 

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Terrorist clicks? drastic measures to moderate online communications under the anti-terrorist banner

What is the best way to combat terrorism? According to the European Commission, it is to clean the internet of terrorist content. Despite little clarity as to what terrorist content really is, the EU institutions are working towards a new regulation that would likely require a wide range of online services to follow the ill-designed measures – measures that would also affect Wikipedia. Yet, the lack of clear definitions, combined with proposed requirements to filter or immediately remove information, threatens democratic discourse and online collaboration.

What is this terrorist content regulation about, again?

In the autumn 2018, the European Commission (EC) published a proposal of a Regulation on preventing the dissemination of terrorist content online (TERREG) as a part of the Digital Single Market framework. Its framing suggests that curbing terrorism is not the main objective of this piece of legislation. Instead, it seeks to provide internet platforms with unified rules on how to deal with content that is considered terrorist, across the EU, and to outline consequences of their failing to comply. 

The rules boil down to a bypass of judiciary oversight in limiting freedom of expression, instead transfering that power to private actors: platforms hosting their users’ content, and content filters. All this makes it very easy to restrict access to information about unfolding civic events, which can sometimes produce violent imagery. Meanwhile, failure to remove disturbing, violent content upon notice is already punishable under the EU law and only 6% of European internet users report coming across what they perceive to be terrorist content (according to a Flash Eurobarometer poll from 2018). 

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4 things EU legislators can do to not break the internet (again)

co-authored by Jan Gerlach

The European Commission’s proposal for a Regulation on preventing the dissemination of terrorist content online runs the risk of repeating many of the mistakes written into the copyright directive, envisioning technological solutions to a complex problem that could bring significant damage to user rights. The proposal includes a number of prescriptive rules that will create frameworks for censorship and potentially harm important documentation about terrorism online. It would further enshrine the rule and power of private entities over people’s right to discuss their ideas.

However, there are still ways to shape this proposal to further its objectives and promote accountability. The report on the proposal will be up for a vote in the Civil Liberties and Justice Committee (LIBE) in the European Parliament on 8 April, and Wikimedia urges the committee to consider the following advice:

1. Stop treating the internet like one giant, private social media platform

Read More »4 things EU legislators can do to not break the internet (again)