A new milestone has been set towards the Digital Services Act, scheduled for the end of the year: on Monday 28 September, the European Parliament's Committees on Internal Market and Legal Affairs each held an important vote on this future package, announced for the end of the year.
The Committee on Internal Market (IMCO) MEPs adopted by a large majority (39 votes in favour, 1 against and 5 abstentions) the report by Alex Agius Saliba (S&D, Malta). MEPs of the Committee on Legal Affairs (JURI) voted only on compromise amendments to the report by Tiemo Wölken (S&D, Germany), as the vote on the draft resolution had been postponed until Thursday, 1 October.
Unless rejected on that day, the two own-initiative legislative reports call for a clear distinction between illegal and harmful content, a strengthening of the notification and action procedures for illegal content and a stricter approach to targeted advertising.
Two legislative reports, one non-legislative report
The draft reports, which are the result of more than 100 pages of compromise amendments, address two of the three instruments that the Commission intends to present at the end of the year, namely: the updating of the e-commerce directive and the introduction of ex ante regulation for online platforms with significant network effects and acting as gatekeepers. However, they do not address the updating of the competition rules.
The Wölken report looks towards the Single Market: it calls for a regulation on contractual rights for content management, which “would not apply to non-commercial platforms with less than 100,000 users”. The Saliba report is broader, since it also refers to ex-ante rules and the strengthening of the rules applicable to market places, which should control and prevent fraudulent companies from using their services to sell illegal or dangerous products and content (Know Your Business Customer).
These two reports, which will be put to the plenary vote at the end of October, come in addition to the non-legislative resolution adopted by the Committee on Civil Liberties last week (see EUROPE 12566/7).
Avoiding a ‘dual copyright encore’
To avoid a repeat of the bad experience of copyright reform, the two parliamentary committees have come out clearly in favour of preserving the principle of limited liability in the e-commerce directive (safe harbour), which states that online platforms cannot be held responsible for illegal content uploaded by their users if they remove it once they have been warned of it.
On the other hand, they consider that the current “notification and action procedures” should be strengthened and clarified. “Basically, we are moving forward detailed recommendations on precise rights, precise obligations, precise methods, for each step of the notice and action mechanism”, explained IMCO rapporteur Alex Saliba at a press conference. “The overblocking resulting from the current situation is a major risk to freedom of expression”, said the rapporteur of the JURI Committee, Tiemo Wölken, earlier.
“With our proposal, we are not touching sectoral legislation of the EU, [without prejudice of copyright or Audiovisual Media Services Directive]”, says Alex Saliba. His report, however, calls for a codification of case law with regard to the concepts of the “active” and “passive” role of a platform. And both parliamentary committees, like the Committee on Civil Liberties (LIBE) before them (see EUROPE 12566/7), are opposed to automated filtering systems.
Illegal or dangerous content
Both reports propose to distinguish between illegal content and dangerous content (disinformation, conspiracy theories, etc.) At a press conference, Tiemo Wölken insisted that dangerous content was not necessarily illegal and that prohibiting it de facto would violate freedom of expression. “Is the problem that someone is expressing something or is that something is being disseminated in a viral way?”, he asked and before answering that, according to him, the urgency was to prevent dissemination by working on platform management models.
The report adopted by the IMCO Committee calls for a new transparency framework for online advertising, digital nudging, micro-targeting, recommendation systems for advertising and preferential treatment. He added that the default options should be those that enable consumers not to be tracked or micro-targeted and to opt-in for the use of behavioural data for advertising purposes, as well as for political advertising and ads. The JURI Committee report mentions the possibility of allowing third party services to take responsibility for the preservation of content via an application programming interface (API).
Targeting the “big” platforms
In general, both committees are seeking to strengthen the requirements for “big platforms”.
The Wölken report suggests a series of indicators to define the market power of a platform (number of users, financial value, access to data, degree of vertical integration and presence of a lock-in effect). The Saliba report follows this direction and even adds a list of positive and negative actions.
Another idea: JURI Committee MEPs supported the idea of a European agency or a European network of national authorities or agencies responsible for checking algorithms, imposing fines and managing a fund (fed in particular by these fines) whose aim would be to support the dispute settlement mechanism set up for users who challenge the withdrawal of their content. (Original version in French by Sophie Petitjean)