trilogues

DMA: heated trilogue negotiations concluded with partial interoperability gains

by Anna Mazgal
March 29, 2022March 29, 2022

Steam cabinet by Finnish Heritage Agency under CC BY

On Thursday March 24th the trilogue negotiators concluded discussions, dramatic at times, over the Digital Markets Act. The compromise includes some gains on interoperability, a potential changemaker in the online intermediation. What to expect? Where not to hold your breath? We parse out the practical consequences of the trilogue outcome on interoperability.

Winding road to the final compromise

Interoperability has been a point of contention since the European Commission published their first draft in December 2020. The EC drafted it narrowly, obligating gatekeepers to offer interoperability to the so-called ancillary services, like payment or identification services, that wish to operate within closed ecosystems. IMCO Rapporteur MEP Andreas Schwab followed this approach in his draft report.

That didn’t go well with many MEPs who were disappointed with the fact that an opportunity to open up walled gardens of online intermediation had not been exploited. Many amendments and heated debates later, the final EP report provided that interconnection should be also possible between messaging apps and services (the so-called number independent interpersonal communication services) as well as social networks.

Since the Council’s approach was focused on refining the business-to-business side of interoperability, the trilogues didn’t show much promise in securing the extension of the EC’s scope. Somehow, under pressure of time the delegation of MEPs managed to negotiate some gains that keep the spirit if not the letter of the EP mandate.

by Dimi Dimitrov
January 21, 2022January 21, 2022

Vote results during plenary session. Image: © European Union, 2022 – Source: European Parliament

Yesterday the European Parliament adopted its negotiation position on the EU’s new content moderation rules, the so-called Digital Services Act. The version of the text prepared by the Committee on Internal Market and Consumer Protection (IMCO) was mostly adopted, but a few amendments were added.

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
May 25, 2021June 8, 2021

by Book Catalog http://www.shopcatalog.com/ under CC BY 2.0

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?

by Dimi Dimitrov
April 7, 2021April 20, 2021

Card and Backgammon Players. Fight over Cards, under CC0

The Regulation on European production and preservation orders for electronic evidence in criminal matters (E-Evidence) aims to create clear rules on how a judicial authority in one Member State can request electronic evidence from a service provider in another Member State. One such use case would be requesting user data from a platform in another EU country during an investigation. We wrote about our main issues in the past.

What Wikimedia worries about

At Wikimedia we were originally worried mainly about a new data category – access data. This would mean that prosecutors would be able to demand information such as IP addresses, date and time of use, and the “interface” accessed, without judicial oversight. In the Wikipedia context, however, this information would also reveal which articles a user has read and which images she has looked at.

The second aspect we care about is whether the service provider’s hosting country’s authority will have the right to intervene in some cases where fundamental rights of its citizens are concerned. We know that unfortunately not all EU Member States have good rule of law records, which calls for safeguards at least against potential systemic abuse. Again, knowing which Wikipedia articles or which Wikimedia Commons images someone opened is information that should be hard to get and only in rare and well justified cases.

by Anna Mazgal
December 18, 2020April 13, 2021

Constitution of May 3 by Jan Matejko, in public domain

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.

by Anna Mazgal
November 20, 2020April 15, 2021

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.

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

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

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

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

Sergey Pesterev / Wikimedia Commons

Stefan Krause, Germany, FAL, via Wikimedia Commons

JohnDarrochNZ, CC BY-SA 4.0, via Wikimedia Commons

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

trilogues