Brussels, 27/04/2016 (Agence Europe) - Deregulating traditional telecommunication services rather than regulating the new players in the digital economy, such as Skype and WhatsApp, is the approach that the European Commission argues in a draft of the communication on online platforms which it will present on 25 May and a copy of which has been obtained by EUROPE (see EUROPE 11539).
The text builds on three key objectives: ensuring that similar services are made subject to fair rules; making sure that platforms act in a responsible, transparent and impartial way; keeping markets open, fair and non-discriminatory.
Definitions and scope. The document sets out the Commission political approach to attract, retain and grow the new platform innovators. In the preamble, it defines platforms as undertakings “that are capable of facilitating direct interactions between users (business and private consumers) via online systems and that capitalise on data-driven efficiencies enabled by network effects”. Examples of these include advertising and commercial platforms (Google, AdSense, DoubleClick, EBay and Amazon), search engines (Google and Bing), social media (Facebook and YouTube) and disseminators of creative content, app stores (Android and Apple Store), communication services (Messenger), payment systems (PayPal) and collaborative economy platforms (BlaBlaCar). With this definition, the Commission excludes those services which do not involve direct contact between users, such as Netflix and Kindle, and industrial platforms which merely bring together stakeholders on technical issues.
No major revolution. Unsurprisingly, the Commission leaves aside the idea of cross-cutting regulation applicable to all platforms. Instead, it opts for clarification of the existing rules where problems have been identified. On some issues, it even argues for self-regulation, as called for by the ministers of 11 member states (United Kingdom, Czech Republic, Poland, Luxembourg, Finland, Sweden, Denmark, Estonia, Latvia, Lithuania and Bulgaria). In a letter sent to Commission Vice-President Andrus Ansip at the start of April, they urged as few rules as possible so as not to hinder innovation.
Fairness. According to the draft document, the Commission needs to take advantage of the review of the privacy directive to ensure that traditional operators and internet telecommunication services (“over-the-top” - OTT - players) play be the same privacy rules. Similarly, as part of its review of the telecoms rules, the Commission will announce “a targeted mix of deregulation of current telecoms-specific rules and the applicability of a more focused set of communications-specific to all relevant and comparable services provided by over-the-top players”.
Liability. Once again, there is no question of proposing new measures or of reviewing the e-Commerce directive (2000/31/EC), which, under certain conditions, exempts platforms from liability for content. According to the draft document, the Commission will only “ensure that the different initiatives affecting online platforms' liability are fully coherent with the e-Commerce Directive”. The Commission will issue guidance on liability and will review the need for formal notice-and-action procedures in the second half of this year. It will also encourage platforms to self-regulate (on tackling incitement to terrorism and preventing cyber-bullying), under the watchful eye of a multi-stakeholder forum which will bring forward a series of recommendations in 2018.
Security and transparency. The Commission is planning a public consultation in 2016 on the security of apps and of non-incorporated software. With regard to data transparency, the Commission will draw up a plan to strengthen public authorities' capacity to process and analyse large-scale data. At the same time, it will examine consumer and marketing rules and will promote interoperability initiatives to encourage online platforms to recognise other means of electronic identification (eID).
The issue of platforms which offer copyright protected content will be dealt with in the copyright package which is to be presented in September. Equally, a separate communication will be launched for the collaborative economy later in the year. (Original version in French by Sophie Petitjean)