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DMA in IMCO: Shadows present ideas, Rapporteur shows a compromise

Shortly before the summer recess, MEPs at the Internal Market and Consumer Protection Committee concocted close to 1200 amendments to the Digital Markets Act, a proposal construing the category of a gatekeeper and a set of obligations for internet services that qualify as one. Let’s take a look at what the Shadow Rapporteurs, the most important people in the process, proposed and how Rapporteur Andreas Schwab tackled their proposals to date if it comes to expanding users’ choice and autonomy over their data through the DMA.

Who’s talking?

As customary in committee work, each political group designated a representative to debate the DMA report. With Adreas Schwab (EPP, DE) at the helm, the Shadow Rapporteurs are: Evelyne Gebhardt (S&D, DE); Andrus Ansip (RE, EE); Virginie Joron (ID, FR), Martin Schirdewan (GUE, DE), Marcel Kolaja  (Greens, CZ), and Adam Bielan (ECR, PL). Each of them, either individually or with colleagues, filed amendments to the DMA.

Contributions span from reinforcing the autonomy of users, through supporting businesses making use of platforms’ intermediation, to supporting platforms themselves. There is no surprise in the fact that the more left of the political spectrum we look, the more important users’ rights are. Having said that, almost each Rapporteur has an interesting proposal on how to make our life on the platforms easier.

Who is in the scope?

With the exception of ECR’s Adam Bielan, all Shadows want to expand the scope of services that could become gatekeepers. Voice assistants, for which the market is highly concentrated, are on everyone’s list, except Kolaja’s. The Green’s Shadow wants to add connected TV and embedded digital services in vehicles, which include those enabling access to audio-visual content. MEPs Gebhardt and Schirdewan expand on the audio-visual, adding services providing audio and video on demand and streaming services respectively.

Web browsers are another popular addition (Gebhardt, Ansip, Kolaja, Schirdewan), along with cloud services (Gebhardt, Ansip, Kolaja). These are also ideas that seem to respond to MEPs’ special interests, such as mobile payment services (Gebhardt), so called number-independent interpersonal communication services that include messaging apps (Ansip). Kolaja adds collaborative economy services to the mix.

It seems that the Shadows would like to see the scope of the regulation expand to an array of services and applications that either already reach the required thresholds or have a potential to do so. Rapporteur Schwab, however, included only virtual (voice) assistants in his draft compromise (as seen on September 28).

“Without portability users cannot exercise any sort of ownership of the data. If interoperability is expanded, they will not be able to meaningfully benefit from it.”

How to become a gatekeeper?

Generally the Shadows don’t seem to be satisfied with the thresholds that the Commission had proposed in its initial draft. MEP Gebhardt takes the whole idea even further: a service becomes a gatekeeper if it meets one of the specified thresholds (two for MEP Schirdewan to qualify), without the need to designate it so by the European Commission. She also proposes to lower the annual EEA turnover threshold from 6,5 to 5 billion euro, an idea seconded by MEP Kolaja. They would also see the threshold of monthly active end users lowered to 23 and 30 million, respectively.  

Two MEPs would rather see the thresholds raised. Adam Bielan would set the bar at 8 billion of annual EEA turnover with the equivalent market value erased from the list. This turnover increase is supported by Rapporteur Schwab in his compromise, who would prefer the equivalent fair market value to be raised to 80 billion over 2 financial years.

A couple of Shadows offer additional criteria that the EC should consider when designing a gatekeeper: MEP Ansip suggests including a degree of multi-homing among business users and active end users into the assessment. MEP Kolaja proposes taking into account any intended concentration notified to the EC.

Users’ data across services

The DMA tackles excessive aggregation of information on end users across various services of a gatekeeper, a business move that sets the platforms at a competitive advantage over other businesses that cannot infer business decisions from such a wide sweep of data. It is of course also good for end users that their activity across multiple services wouldn’t be aggregated to modify their future online behaviour. 

In that case both the Greens and GUE want to curb the aggregation, with Marcel Kolaja suggesting that such a combination cannot be done even if the user has been presented with such a choice and gave consent. GUE’s Schirdewan wants to permit it provided that it does not subvert or impair consumers’ autonomy, decision-making, or choice. 

Contrary to the Greens and siding with GUE, Rapporteur Schwab proposes that combining the data should be possible if the end user has been presented with the specific choice in an explicit and clear manner. Alternatively the gatekeeper can fall back on GDPR provisions on consent, but combining the data cannot be justified by general rules such as legitimate interest or performance of a contract. 

“There is a risk that users may be scared into not acting on the new functionalities because of the alarmist messages or user experience design making them cumbersome or hardly accessible.”

Bundled subscriptions

Another ongoing issue is that a decision to use one of the services is often connected to involuntary subscription to a bunch of others offered by the same platform (remember how one day users of Google products found themselves subscribed to its bizarre social network, Google+?). There is also an issue of conditioning access to a service with a use of another service by that same company, for example bundling a Youtube account with a Google account. The DMA proposal would forbid such bundles and conditioning of access. 

MEPs Gebhardt and Kolaja think the bundling should no longer be possible across any services by one platform, and not only those that meet the high threshold of 45 million monthly active users. MEP Gebhard makes it clear that it shouldn’t be introduced through a backdoor of product design either. Rapporteur Schwab sides with her on both in his proposed compromise. 

Removal of preinstalled apps

Many of us get a new device and discover that it comes with multiple preinstalled apps that not only take up drive space but also cannot be uninstalled. The good news is that the DMA draft mandates that all preinstalled apps can be uninstalled by the end user unless they are necessary for the operating system to properly function. 

Shadow Rapporteurs at IMCO like this provision and provide suggestions on how to make it stronger. MEPs form the groups on the left posit that this provision is sufficiently self-explanatory to be moved into the core set of obligations of gatekeepers (article 5) from article 6 containing those obligations that need to be further specified by delegated acts. Rapporteur Schwab sides with that idea in his draft compromise. MEP Ansip clarifies that removal of apps should also result in removal of accompanying collected and stored data, which is a good idea and it should be taken up as well. 

Interoperability

Interoperability that enables users to connect through various messaging apps, social media platforms or providers of access to platforms (for example ensuring greater privacy and protection from surveillance) would be a great win reshaping the way online ecosystem works. 

The MEPs on the left joined by MEP Ansip believe that interoperability should be accessible to end users and not only businesses, bringing in a hope that enough pressure could be created to include this in the final IMCO report. So far, however, the Rapporteur sticks to his guns and (as laid out in his draft report) does not want to expand interoperability requirements to end users.

MEP Bielan is of a similar opinion. He wants to strengthen platforms by specifying that interoperability is only required as long as it does not present a disproportionate technical obstacle nor impedes legitimate product development, the quality of the product, etc. These discretionary clauses would give platforms an easy workaround out of providing real interoperability to businesses.

Portability of data

Portability of data is another major benefit for end users and DMA provides that gatekeeper services should enable it. Without it and without access in real time, users cannot exercise any sort of ownership of the data, and should the interoperability be expanded, they would not be able to meaningfully benefit from it without being able to get their data for a transfer. 

MEP Gebhardt would like to see this provision strengthened by clarifying that gatekeepers must implement appropriate technical and organisational measures for ensuring effective portability of data. MEPs Kolaja and Schwab have a different take. They seek to strengthen portability by ensuring that the provision includes personal data generated through end user’s activity on the platform. MEP Bielan is an outlier here as much as in the case of interoperability, as he doesn’t believe that continuous, real-time access is necessary to ensure that portability works for end users.

Anti-circumvention

If there is anything we learned living our online life intermediated by platforms is that they are experts in nudging or scaring us into making choices that serve them and not necessarily us. For example, switching off access to certain functions of an app, be it location for photos or access to the address book for a game, results in a warning that the app won’t function properly even though it is clear that the switched off functions aren’t essential to its functioning. There is a risk then that with all possible gains from DMA, users may be scared into not acting on them because of the alarmist messages or user experience design making these new functionalities cumbersome or hardly accessible. 

MEP Kolaja proposes that article 11 include a ban on circumvention by product design, structure, function or manner of operation capable of influencing user choice and autonomy. MEP Schirdewan is of a similar view and adds through a change in article 5.1.e that gatekeepers should not use “non-technical tactics” to restrict end users to switch between and subscribe to different apps. MEP Gebhardt has similar suggestions. Sadly, the Rapporteur doesn’t see the need for strengthening these provisions.

Who has the right to be heard?

The DMA proposal provides that gatekeepers have the right to be heard on preliminary findings as well as the measures the EC intends to take in a number of cases, including whenever the European Commission deals with assessing the compliance efforts, granting suspensions of gatekeeper status or obligations, decisions on exemptions for public interest, market investigations for designation of gatekeepers and systematic non-compliance, imposing interim measures, accepting gatekeepers’ commitments, making decisions related to non-compliance, and imposing fines and payment conditions. 

These decisions and processes could benefit enormously from the input of concerned third parties: other businesses, users and their organisations, researchers of the platform ecosystem or experts. Some MEPs agree that the right to be heard should be expanded. MEPs Gebhardt wants to simply include all third parties with legitimate interest. MEP Kolaja adds that if legal and natural persons show sufficient interest, their applications should be granted. MEP Schirdewan follows a slightly different approach focusing on adding third parties affected by the conduct of the gatekeeper concerned. Unfortunately, the Rapporteur hasn’t picked up any of these suggestions so far.

“If we want the internet to work for the users and not just for the platforms, interoperability for end users should be on Rapporteur Schwab’s shortlist.”

Unfinished work

Looking at just a handful of nearly 1 200 amendments it seems that the Shadows themselves provide many good ideas to make sure that the DMA brings concrete solutions to end users. Sadly, Rapporteur Schwab seems to mostly stick to his vision presented in his draft report. Fortunately there is still time for the Shadows to pressure him into greater inclusion of clarifications on obligations and especially expanding the scope of interoperability to end users. 

Regarding the latter, he may face pressure not only from the left side of the political spectrum but also from the liberals. Looking at his work in detailing and strengthening the obligations regarding combining data, unbundling subscriptions, providing the uninstalling options and data portability, it is puzzling why interoperability for end users is not on MEP Schwab’s shortlist. And it should be, if we want the internet to work for the users and not just for the platforms.