regulation

DMA votes: IMCO vs. Council, users vs. Member States

by Anna Mazgal
December 1, 2021December 2, 2021

Gates And Gate Piers To The Quarry by Peter Broster under Creative Commons Attribution 3.0

We have it! Both the Council of the European Union and the Internal Market and Consumer Protection Committee adopted their versions of the Digital Markets Act. After the upcoming EP Plenary vote we will spend a good part of 2022 following the intransparent and unpredictable negotiations between the two bodies. Let’s take a look at what they are bringing to the negotiating table if it comes to big ideas and, above all, new benefits for users.

How it started, how it’s going

After the European Commission showed its proposals for the Digital Markets Act, there were different views on how to make it better; the EC proposal lacked teeth, especially regarding any mechanisms that could break the grip that GAFAM has on the internet. For us, at Wikimedia, the most desired approach would have been to address the business model and not merely base the gatekeeper qualification on turnover and market capitalisation.

It turned out very quickly, however, that the legislators are not in a mood to overturn the status quo. That was not exactly the key objective for the IMCO Committee Rapporteur, although Shadow Rapporteurs managed to introduce good ideas, as we will see below. Now we are awaiting the Plenary vote, most likely on December 16^th. It remains to be seen whether the IMCO report will be in any way amended. But it doesn’t seem likely that the changes, if any, are substantial and it is unlikely that the file that the need for is so widely understood would be rejected.

by Dimi Dimitrov
November 8, 2021November 9, 2021

If the EU really wants to revamp the online world, it should start shaping legislation with the platform models in mind it likes to support, instead of just going after the ones it dislikes.

Whistleblowers are important. They often provide evidence and usually carry conversations forward. They might be able to open the debate to new audiences. I am grateful to Frances Haugen for having the courage to speak and the energy to do it over and over again across countries, as the discussion is indeed global.

On the other hand the hearings didn’t reveal anything completely new, we didn’t learn something we didn’t already know. We live in a time where the peer-to-peer internet has essentially been replaced by a network of platforms, which, in their overwhelming majority, are for-profit, data-collecting and indispensable in everyday life.

by Anna Mazgal
November 8, 2021November 5, 2021

Telefoncentralen i Piteå 1919 by Broman & Tekniska Museet, under CC BY 2.0

The ePrivacy Regulation could potentially make communications better by setting a firm standard on how online tools can and cannot be used in profiling and surveilling individuals. We became directly interested in the proposal for a regulation when we realised that the proposed rules on how our chapters and affiliates can communicate with their supporters are ambiguous. Here is the breakdown of the problems and ways out.

How it works now

The Regulation concerning the respect for private life and the protection of personal data in electronic communications (a full name of a Regulation on Privacy and Electronic Communications, or ePrivacy Regulation) is now subject to trilogue negotiations. We specifically look into provisions on the scope of direct marketing. As much as we don’t “market” any services or products for sale to individuals, we all want to keep in touch with our supporters. According to the ePrivacy proposal such communication falls under the definition of direct marketing. This concerns organisations in our movement that contact individuals to solicit donations or to encourage them to volunteer in various ways in support of our movement’s mission.

Currently in several Member States, based on the ePrivacy Directive and subsequent national laws, nonprofits have the right to contact individuals who they were in touch with before, on an opt-out basis. It means that while they present a new initiative or a fundraising campaign, they need to provide the contacted people with a possibility to refuse receiving such information in the future.

by Anna Mazgal
October 6, 2021

Doctors or medical students listening to their heartbeats using a multiple stethoscope by Wellcome Collection under CC BY

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.

by Anna Mazgal
July 1, 2021July 1, 2021

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.

by EU Policy Team
April 22, 2021April 23, 2021

Winter 2020 in Wolfsberg District, Carinthia, Austria by Naturpuur under CC BY 4.0

The Digital Services Act is probably the most consequential dossier of the current EU legislative term. It will most likely become a formative set of rules on content moderation for the internet. It also means that it will shape the way Wikipedia and its sister projects operate. One can only hope that the DSA doesn’t try to fix what isn’t broken, specifically our community-based content moderation model. What are the scenarios?

A quick history of recent platform liability legislation

One of the reasons why the DSA became a thing, is the growing conviction that online intermediaries – from social media, through various user-generated content hosting platforms, to online marketplaces – will not fix the problems with illegal content through voluntary actions. In the previous legislative term we saw two proposals to change the responsibilities and liability of platforms. The focus was on types of content: copyrighted material (in the infamous Directive in Copyright in the Digital Single Market) and so-called terrorist content (in the Regulation on Dissemination of Terrorist content Online, or TERREG, with its final vote on April 28).

The topical focus has its limitations, such as the number of legal regimes one platform would need to conform to simultaneously. This time around, the European Commission wants to impose rules on platforms that would cover all sorts of an intermediaries, content and services.

by Anna Mazgal
March 31, 2021May 5, 2021

photo by Sergeant Ian Forsyth RLC/MOD, Open Government License 1.0

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

Sergey Pesterev / Wikimedia Commons

Stefan Krause, Germany, FAL, via Wikimedia Commons

Charles J. Sharp, CC BY-SA 4.0, via Wikimedia Commons

Michael S Adler, CC BY-SA 4.0, via Wikimedia Commons

Markus Trienke, CC BY-SA 2.0, via Wikimedia Commons

JohnDarrochNZ, CC BY-SA 4.0, via Wikimedia Commons

NASA Goddard Space Flight Center from Greenbelt, MD, USA, Public domain, via Wikimedia Commons

Benh LIEU SONG (Flickr), CC BY-SA 4.0, via Wikimedia Commons

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