Digital Services Act (DSA): the great European regulation that can change the internet as we know it

“The Digital Services Act (DSA) has the potential to be one of the most relevant technology regulations of our generation,” states the GSMA. Europe is preparing its great project to regulate the digital world and establish the lines that large technology companies must meet. An ambitious plan that will cover everything from advertising and the management of our data to the responsibility of the platforms for the content that is published on them.

To date, the European Union has tried to stop the abusive practices of companies like Google or Facebook through millions of dollars fines, but as Margrethe Vestager , European Commissioner for Competition explained : “in this digital age, we need the power to do more than investigate individual cases “.

Two decades have passed since the Directive on electronic commerce , which is still in force, and touches new European regulations, adapted to the times . This is what we know about the future Digital Services Law, what is the position of the European Commission regarding the issues to be regulated, what companies defend, what is the calendar and what impact it may have on our use of the internet.

What is the DSA and what will it cover
The Digital Services Law aims to renew the directive on electronic commerce, but it will take the opportunity to add new regulations for digital platforms . In February 2020, the Commission published the document ‘ Shaping Europe’s digital future ‘ where it was established that by the end of this year “new and revised rules would be created to deepen the internal market for digital services, increasing and harmonizing the responsibilities of the platforms. online and strengthening the supervision of content policies in the EU “.

According to one of the proposals for the month of October , the scope of the ‘ Digital Services Act ‘ will cover “from social networks, to collaborative economy services, through search engines, online advertising, online services. the cloud, Wi-Fi access points, web page hosting, messaging services, app stores, comparison tools, artificial intelligence-based services, content delivery networks, and naming services domain”.

Future regulations will seek to “clarify the content of the concept of ‘illegal content'” and will try to clearly establish between what is a non-economic content activity and what advertising comprises . That is, differentiate the rules that should apply to normal content and what the rules are for sponsored content and other advertising publications.

Another concept that the Digital Services Act will try to define is that of “systemic operator” , in reference to those companies that can hold an important position in the market and act as ” gatekeepers “. It is not clear at the moment what impact these operators would have and if being considered as such could have legal effects, but large technology companies such as Google, Facebook or Amazon are expected to be included in this category . How this category will be defined has not been specified and will be something to analyze , but it is expected to be through a combination of quantitative and qualitative criteria.

Among the main objectives of the Digital Services Law is to define the responsibility of the platforms with the content that is published on them and to create the figure of ‘gatekeeper’, to differentiate those platforms that have too much influence in the market.

Thierry Breton, Commissioner for the Internal Market of the European Union, has tried to anticipate what this distinction will be like. “The most important criterion is the impact of the platforms on the single market, which is a criterion that we consider very important. Another aspect is whether a service is ‘unavoidable’ or not. In other words, if you are an SME and want to sell your product and you have no other option but to go through a certain platform , then the platform could be considered within the scope of the access guardian criteria, “says the Commissioner. “We work with objective criteria and we don’t have a ‘list’ of platforms. What we are trying to capture is the behavior of the platform.

As Breton explains : “companies must have a legal representative in Europe if they wish to offer services here “, in line with the latest decision of the European Justice in relation to the Privacy Shield and with the information being handled from Europe.

The Digital Services Act will attempt to categorize the various technologies. Some of the large companies included in the Report of the Digital Services Act
The DSA will attempt to categorize the various technologies. Some of the large companies included in the Report of the Digital Services Act

The same Commissioner also hints at some other point of the future Digital Services Act and Law, explaining that “the platforms will have to be more transparent about their algorithms”, which “will be audited periodically “.

During an online event in July , Vestager explained what the Digital Services Act’s approach will be with regard to sales platforms. “They should be better at identifying who is selling on their platforms. It is ridiculous that a merchant who has been caught selling illegal products can disappear into thin air and register under a different name just a few minutes later,” explained the Commissioner for Competition.

Electronic identification will also be one of the topics that will be dealt with in the Digital Services Law. The report believes that “an online electronic identification system must be created”, applying the interoperability of the eIDAS regulation and asks the Commission to study the creation of a single registration system in the Union , mandatory for digital services provided there is registration Handbook.

What measures will be applied to the content?

According explains Vestager, platforms will have to “report on what they have done to remove the illegal material. They will have to tell us how they decide what information and recommending products and what to hide , and give us the possibility to influence those decisions, rather than just make them for us. And they will have to tell us who pays for the ads we see, and why we have been targeted by a certain ad. “

In the event that a user sees their content removed for no apparent reason, platforms must establish ” simple ways for users to complain , protecting the right of legitimate companies to do business and the right of individuals to freedom of expression.”

According to the trade directive of the year 2000, the companies of online service providers such as Facebook, Twitter or YouTube are not responsible for the illegal content that is distributed on them. Once a judge has determined that this content is illegal, the intermediaries simply remove it, playing a purely technical and content-neutral role. But the Digital Services Law wants to change this.

The 2000 directive exempted content platforms from liability, but the DSA wants to change this. The big debate that still rages on is to what extent they should intervene in ‘harmful’ content; be it deleting, hiding or simply notifying users.

The October report on the Digital Services Act considers it necessary that “illegal content be removed quickly and systematically”, although it calls for it to be done “diligently, proportionate and non-discriminatory” in order to avoid the elimination of content that are not illegal.

The debate is on this thin line and we will have to wait for the final version of the Law to review the possible edges. The report asks that platforms “study the possibility of tagging that content instead of removing it from the network , thus giving users the opportunity to access it at their own risk.”

Given the complexity of this issue, the Commission’s report stresses that “a certain content may be considered illegal in one Member State and be protected by the right to freedom of expression in another.” Vestager further explains that the Commission seeks to build a better “relationship of trust” between the country of origin and the location of the platform user. That is, to be able to record with better precision what is the country of origin of a certain tweet or a certain video . The new DSA will allow non-EU companies such as Facebook, Twitter or Google to choose the country from which they wish to operate (based on taxes?), But they will be subject to common guidelines for all of Europe, monitored by a supranational body.

Another concern of regulators is that the new regulations create “legal uncertainty.” For this reason they propose that “the legislation should not include undefined concepts and terms . ” What does seem quite clear is the underlying problem. The European Commission describes it like this, in a paragraph that condenses several points but is quite revealing:

“Today’s digital ecosystem also encourages problematic behaviors, such as feature-based micro-segmentation that expose physical or psychological vulnerabilities, the spread of hate speech, racist content and misinformation, emerging issues such as organized multi-platform abuse, and creating of accounts or the manipulation of online content using algorithms; notes with concern that some business models are based on displaying sensationalist and polarizing content to users in order to increase their viewing time and, therefore, the benefits of platforms online”

What is the position of the different parts

“The multimillion-dollar sanctions against Google have not prevented the search engine from taking over more than 90% of its market in Europe,” explains Thierry Breton, European Commissioner for the Internal Market in an interview at the beginning of November. “I often speak with them, with someone almost every week, and I insist that they must change, that they must adapt to Europe and not the other way around, ” says the commissioner who for more than ten years led the multinational ATOS.

Some of the big tech companies have already hinted at their position . This is the case of Google, who through a statement from Karan Bhatia, VP of Global Public Affairs, critically explains that “while we support the ambition of the DSA to create clear rules for the next 20 years that support economic growth We are concerned that the new rules may instead slow down the economic recovery. “

Neal Mohan, YouTube executive, explains to Politico what the video social network requests from Europe: ” clarity regarding notification and removal, with a specific focus on illegal content ; flexibility around recommendations; and the importance of that the regulation is applied universally. “

Nick Clegg, Facebook’s VP of Global Affairs, explains that his “own concern is that while politicians in Europe are understandably talking about digital sovereignty and new regulation, many of which I am sure are well founded and well established, In the end, the most important ingredient that would help Europe compete against China and the United States is finishing an old project, not starting a new one. And that is creating the unfinished digital single market. ” At the end of 2019 , Clegg’s position was that “the more accurate we make data available, the more susceptible it is to lead to privacy abuses.”

Mitchell Baker, Mozilla CEO, explains that the DSA is “a once-a-generation opportunity” and calls for “significant transparency regarding disinformation, more effective content accountability by online platforms, an online advertising ecosystem. healthier and competitive digital markets. “

Amazon executives have not commented on the Digital Services Law, but they have expressed that they are “in disagreement with the preliminary statements of the European Commission” regarding the investigation opened for using the data of third-party sellers to compete against them , precisely the type of maneuvers that the future regulations will try to alleviate before conflicts of this type occur.

Last September, Microsoft issued a statement explaining its position on the Digital Services Law and its different key sections. On “systemic operators”, Microsoft believes that ” regulation should set a high and demanding thresholdthat only some platforms comply, encompassing those that are of exceptional size and have a lasting position of control over the access of other parties to the EU single market. “At this point he proposes to differentiate three categories of services: those that are ‘markets’ such as Amazon, eBay, AirBnB, Uber or Steam; what are advertising platforms such as Google Search, Bing, Twitter or Facebook and what are software platforms such as Apple and Google application stores. And how to determine which are sufficient? Microsoft proposes to use the concepts of “effect on the network”, “economy of scale”, “economy due to data” and “limiting effect on differentiation.” Throughout the text the company describes the particulars of its system ,in what is a fairly concrete proposal onhow to define such a complex issue as which technology companies should have a special categorization .

In June 2020 , Apple sent its feedback on the Digital Services Law to the European Commission: ” We believe that companies must take responsibility for the content on their platforms , and any regulation must take into account the distribution framework of the providers of editorial function and services, while supporting and strengthening country of origin principles. “

Regarding different technology platforms, Apple considers that “what makes sense for public-facing content sharing platforms may not be appropriate or technically feasible for the services used to facilitate private communications or storage; A service generated by Ad-driven users will likely have higher levels of exposure to illegal content than a curated or paid content service “, referring to the fact that the requirements applicable to platforms such as Twitter or Facebook should be different than those required to control the App Store.

Impact that the Digital Services Law will have according to the group 'Alliance for Startups'
Impact that the Digital Services Law will have according to the group ‘Alliance for Startups’

Through the consulting firm Oxera, the ‘Alliance for Startups’ group, which brings together a large number of European startups, published a report explaining its position regarding the future DSA. Regarding the use of automated tools to filter content, they explain that it could help reduce costs in new companies, but, despite encouraging the proactive detection of content, the startups association explains that the liability exemptions of the current trade law should be maintained. electronic from 2000.

On the part of the EDiMA group, which has the support of large companies such as Google, Amazon or Facebook, a report on the ‘ Digital Services Act ‘ was published last October . It explains that there must be clear differences between what is illegal content and what is harmful content . “With content that is ‘harmful’ but not illegal, a service provider will often have to make decisions about where to draw the line between freedom of expression and the right to information versus possible harm caused to users,” sustains the group. A difference that can be more complicated due to the multiple cultural peculiarities that exist in Europe.

Clearly differentiate between “illegal content” and “harmful content” is one of the most repeated requests by different companies and associations.

Before public consultation, the CNMC published its contribution at the beginning of November , demanding prudence to avoid over-regulation, avoid generating unnecessary uncertainty and allow a flexible framework. From the ALTER-EU Alliance , they warn the Commission of the aggressive lobby that large technology companies will exercise .

The position of the different countries is not the same. France is positioned in favor of reducing the visibility of the contents and limiting sharing to combat misinformation, rather than block them or delete it . In the case of countries like Sweden, they want the DSA to specifically target illegal content.

József Szájer MEP, negotiator for the conservative group PPE, states that: “the vast majority of online platforms impose certain self-established rules on the users of their services. We need to work within a legal framework based on the responsibility of the platforms that is effective against illegal content but does not interfere with freedom of expression. ” For Kris Peeters, Belgian Christian Democrat MEP: ” what is illegal offline should be illegal online “.

An equivalent process is maintained from the United States, with the so-called ‘Section 230’ of the Communications Decency Act of 1996. The current President-Elect, Joe Biden, is in favor of eliminating it and is also committed to the regulation of large telecommunications companies.

What impact will the Digital Services Law have and when is it expected to be approved?

The Digital Services Law was announced last February, but it was not until mid-October that the Commission held two voting sessions on it. Several amendments were then tabled which were rejected and a vote was taken in favor of the general report . The final vote was scheduled for December 2, but will finally be held on December 9 , along with the vote on the Digital Markets Act and under the responsibility of Commissioner Margrethe Vestager .

It is still early to know the details on the impact of the Digital Services Act, although Vestager promises that ” very few small businesses will be affected by the new digital rules .

On December 9, 2020 we will know all the details of the new Digital Services Law, the most important regulation of the last two decades regarding the Internet.

The European Union aspires to lead the management of content on the Internet, in a manner equivalent to the advances in data protection with the RGPD. From platforms such as the Electronic Frontier Foundation (EFF) they believe that ” the DSA is the most significant European reform in two decades and a key opportunity to improve the Internet ; question the paradigm of capturing the attention of users that shapes our online environments of so fundamentally, and restore autonomy and control to users. ” How will it affect users? As EFF summarizes, users will have better control over the content by having more transparency about the algorithm that controls it .

From the Platform in Defense of Freedom of Information they express that the DSA is “a norm that will mark the future of the Internet for the next decades.” Joan Barata, jurist and member of the PDLI, argues that “obligations must be commercially reasonable, transparent, proportionate and, in general, flexible” and explains that “recognizing that there is no one-size-fits-all approach and maintaining flexibility for the different Content moderation practices can allow effective “Good Samaritan” moderation of harmful, but not illegal content. “

In a few weeks we will know all the details about the new Digital Services Act, the regulation that will mark the use of the internet for all users in Europe. A new regulation that will cause platforms to be more controlling with the content that is published on them and where in an equivalent way they will also be required to comply with stricter rules.

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