The free movement of data will definitely be the subject of a legislative proposal. This was confirmed on Wednesday 10 May by Vice President Andrus Ansip, during the presentation of the midterm review for the single digital market strategy by the European Commission.
This paper accompanies a report assessing the progress made by member states in the field of digitalisation. It examines 16 development areas and the 35 legislative proposals and political initiatives included in the May 2015 strategy. It welcomes, for example, the agreement ratified at the end of 2016 on the coordinated use of the 700 MHz frequency (see EUROPE 11746) but is concerned about the opposition of member states to more harmonised radio spectrum management.
The digital agenda’s midterm review also highlights three areas where the Union still has to continue its action: 1) developing the European data based economy and optimising the opportunities it presents; 2) protecting Europe’s benefits by tackling cyber security challenges and 3) promoting online platforms as actors responsible for ensuring a fair Internet ecosystem.
Second attempt on the free movement of data in the autumn
The most surprising announcement focuses on the data based economy. The Commission is committed to presenting a legislative initiative this autumn on cross-border non-personal data flows. In Spring 2018, it intends to put forward an initiative on the access and reuse of public sector data and the data obtained through public funding. It also adds that it will continue its work on responsibility and other data related questions.
The idea of the new legislation on the subject is nothing new. The Commission had already submitted a draft regulation months ago to the regulatory examining committee (the former impact assessment committee) but the text was rejected due insufficient justification for this approach (see EUROPE 11765).
This was followed by regular dialogue with the member states, in an attempt to convince the states with the most misgivings. Addressing the press, Vice President Ansip claimed at the beginning of May that support from Germany had been won and that there were therefore 19 member states that now backed him.
The election of Emmanuel Macron in France, a country that is fiercely opposed to a legislative initiative in this area, may have convinced the European Commission to try this idea again. Sylvie Goulard (ALDE, France), supports the new French president and has been touted as a possible contender for a ministerial post. She met Vice President Ansip on 4 April in Strasbourg.
According to one source from this institution, the scope of the future initiative will be broader than that presented to the examining committee at the time: “This will involve a broader framework for cooperation based on the following principles: free movement as it stands, data availability, changes of device and storage security standards”
Mapping direction of online platforms
The Commission’s vision regarding online platforms was also eagerly expected, following the European industry’s letter of complaint about the practices of Google and Apple (see EUROPE 11784).
The paper indicates that the Commission will continue the dialogue it began with the online platforms and improve it, in an effort to tackle the contractual clauses and unfair trade practices in the relations between the platforms and businesses (such as the withdrawal of a product without notification or a possibility of complaining).
The Commission points out that, “One of the objectives targeted is to make progress on the question of procedures and principles for withdrawing illegal content (reporting and taking action) on the basis of transparency and respect for fundamental freedoms”.
The Commission has also made a commitment to publish before the end of the year, guidelines in good-faith (a kind of “tracing of responsibility”), which will clarify certain concepts, the timetable to follow and the jurisdiction, etc.
According to the information we have received, the Commission is looking at three areas of reflection: setting up a disputes settlement mechanism; the application of criteria for fairness by way of a standard contract and improved transparency, such as in cases involving unilateral changes to contracts or matters involving the jurisdiction in question.
Cyber security and key areas
In the field of cyber security, the Commission has announced that it will re-examine its 2013 strategy by next September, as well as the European Network information Security Agency’s ENISA mandate. It will also be working on the proposal for complementary measures affecting cyber security standards, certification and the labelling of cyber security related objects.
The document also identifies a range of political areas on which the Commission will focus over the next few years: e-health, supercomputers and relations with other countries.
Stakeholders outline their priority areas
Many stakeholders responded to the communication by underlining their position on the legislative areas currently being developed.
Business Europe, for example, called on the Commission to apply its principle of smart regulation in an effort to ensure that the single digital market strategy remains favourable to innovation and investment.
The Association of Commercial Television in Europe (ACT) called on the Commission to promote the liberalisation of audiovisual media services and criticised the draft SatCab regulation because there were insufficient reasons for developing it and the fact that it could have a damaging impact on content provision, employment and growth.
The Independent Music Companies Association (Impala) called on the European legislator not to water down the proposal on copyright and for it to add an exception to it on user generated content.
The European Consumers Organisation (BEUC) called for the rules in force to be reformed so that consumers could access the content of their choice.
Software manufacturer members of the Business Software Alliance (BSA) were delighted with the provisions on the free flow of data.
The European Telecommunication Network Operators (ETNO) called for network operations to be monitored and for spectrum to be reformed by way of improving the current regulation on access in the current system, harmonising licensing conditions and extending the length of licenses.
At the European Parliament, the Socialists criticised the communication’s lack of references to inclusion and skills. The Eurosceptic ECR criticised the Commission for doing too much to limit digital business as not doing enough to free up the potential of the future integrated single digital market. (Original version in French by Sophie Petitjean)