The European Commission officially opened hostilities on Tuesday 2 June on the Digital Services Act. It launched a general public consultation until 8 September and opened several sectoral consultations linked to the feedback mechanism, open until 30 June, on the basis of specific roadmaps.
A package planned for the end of 2020
As a reminder, the Digital Services Act, which is due to come into force in the 4th quarter of 2020 (see EUROPE 12492/9, 12477/12), was announced by the President of the Commission, Ursula von der Leyen, to better regulate information service providers, including online platforms.
This exercise has two components: – increase and harmonise the responsibilities of these service providers; – consider ex ante regulation to address competition concerns raised by online platforms with significant network effects and acting as gatekeepers.
The general consultation is wide-sweeping. It asks about the best way to protect online users, the possibility of revising the limited liability regime provided for in the e-commerce directive for services acting as intermediaries, online advertising, smart contracts or platform workers.
The other consultations – on the E-Commerce Directive, ex ante regulation and competition rules (see other news) – are based on a roadmap detailing different scenarios envisaged by the European Commission.
Also of note is the ongoing evaluation exercise for simpler and cheaper regulation (Refit) of the General Product Safety Directive, the forthcoming debate on platform workers and the revision of the code of practice on disinformation that the Commission will present next week.
Building on the E-Commerce Directive or revolutionising it?
The roadmap envisages several options, based on Article 114 of the Treaty on the Functioning of the EU (internal market), and potentially even on Articles 49 and 56 (freedom of establishment and freedom to provide services in the EU).
In addition to the baseline scenario based on implementation of existing legislation, the Commission envisages, respectively, making the 2018 Recommendation to combat illegal online content binding (option 1), modernising the E-Commerce Directive (option 2) and/or creating a system of sustained monitoring, enforcement and cooperation at European level (option 3).
Option 1 would not change the liability principles of the E-Commerce Directive. Indeed, it would only set out the responsibilities of the platforms regarding the sale of illegal products and/or services and the dissemination of illegal content or activities, in particular through notification and action mechanisms as well as remedial obligations.
Option 2, on the other hand, would update the liability and safety rules and provide for obligations according to the type, size and risk of a platform. This option would also explore new obligations for transparency, reporting or independent monitoring of algorithms, the possibility “to extend these measures to all services destined for the European single market, including those established outside the EU” and a sanction mechanism for systematic breaches.
Ex ante approach: towards a blacklist of behaviours?
In the roadmap on ex ante rules, the Commission questions the possibility of introducing ex ante obligations for large platforms.
This option 3, which seems to be preferred by Commissioner Thierry Breton in view of his public speeches, would be based on clear criteria (network effects, number of users and/or the ability of the service to obtain market data). The Commission even goes so far as to consider two sub-options, namely establishing a black list of behaviours (obligations and prohibited practices) on the one hand, and the adoption of tailor-made remedies addressing, on a case-by-case basis, large platforms playing a gatekeeper role (such as obligations of access to non-personal data, specific criteria on the portability of personal data or interoperability criteria) on the other hand.
The other options considered in the roadmap are: – the status quo (option 0); – new transparency obligations by amending Regulation (2019/1150) on the relationship between online platforms and user undertakings (P2B) which will only apply from 12 July 2020 (option 1); or – establish a European regulatory authority to collect information from broad platforms that act as gatekeepers (option 2).
More info at: https://bit.ly/3cmmYKN
For the sector consultation on the competition aspect, see the separate news item. (Original version in French by Sophie Petitjean)