It was not until a ministerial discussion on combating online disinformation on Thursday 23 May that the future of the ‘e-commerce' directive was publicly discussed. During its speech, Austria officially called for the reopening of this directive, which provides for an exemption from liability for platforms.
Austria lays its cards on the table
So Pandora’s box is open. The issue of platform liability is not a new one. But the European Commission had so far tried to circumvent it: in its draft directive on copyright reform, it was careful not to reopen the 'e-commerce' directive. On the contrary, initially it proposed that only platforms that do not benefit from an exemption from liability under 'e-commerce directive should be required to conclude licensing agreements. In the end, the co-legislators decided to impose this provision on all platforms or, at least, to be able to prove that they had tried to.
But for Austria, this is not enough: “The e-commerce directive must be reopened, as regulation is required in the media sector. This directive is not adapted to the era of information technology. Online platforms should be seen more as media and not as neutral actors, as they tend to present themselves," said Gernot Blümel, Austria's Minister of Culture.
Regulation vs. self/co-regulation
This position is part of a discussion on the Code of Good Practice against disinformation, a tool that allows platforms to self-regulate in specific areas, at the risk, that if they are not sufficiently efficient, legislative means will be considered at the end of 2019. In one of the two questions submitted by the Romanian Presidency, it asked the ministers about the need to "strengthen European audiovisual and media policy". To this question, apart from Austria's clear call, Latvia's request, supported by the Czech Republic, to set up a permanent working group on disinformation and Portugal's request to maintain the early warning system beyond the election period, the responses were rather evasive.
Several Member States have suggested that they are totally opposed to new regulations. This is the case in Portugal, Denmark, Finland, Ireland and Italy. "At EU level, now is the moment to evaluate and assess, not acting by impulsion", said the Irish representative. And for his Danish colleague: "Strengthening audiovisual policy is not the way. We are in favour of the soft approach: education, media skills and quality journalism”.
Spain, France and Cyprus suggested that regulation could be considered. "Self-regulation seems to give significant results. But we feel regulation has also an added value", said the Cypriot representative. "If it’s necessary to think about norms, we should”, said the Spanish Deputy Ambassador. "We have taken a first step with the audiovisual and copyright directive. And we are in favour of further reflection to determine an 'appropriate European regulation’”.
Poland and the Czech Republic both called for an approach that can be summarised by the well-known formula of ‘wait and see’. At least wait for the next Commission. (Original version in French by Sophie Petitjean)