On Thursday 15 October, France and the Netherlands co-signed a working paper in which they support the idea of creating a list of obligations and prohibited practices (“do’s and don’ts”) that would apply to online platforms, with case-by-case remedies for structuring platforms.
The document, which was presented on the margins of the informal meeting of European Telecommunications Ministers, comes a few months before the Commission presents the Digital Services Act (DSA) and Digital Markets Act (DMA), which will include ex-ante rules for structuring platforms.
Case-by-case remedies
The paper calls for large structuring platforms to be tackled, because not only do they have a “negative impact on freedom of choice” but they may also be a barrier to “innovation, price and quality”. The two countries mention “simple and objective” criteria to identify these platforms, such as the size of the platforms (the number of users, business contracts, market share or turnover) and more qualitative criteria (the characteristics of the service or ecosystem in question together with the behaviour of the platform and its users).
The list of “do’s and don’ts” might include: - an extension of the right to data portability for business users; - rules regarding fair contracts; - rules prohibiting disruptive self-preferencing practices; - and rules prohibiting halting access for third party providers, including for instance, application programming interface (APIs) and data without objective justification. The list of case-by-case remedies identifies an obligation to proactively offer alternatives to users, interoperability safeguards and data-sharing obligations.
The working paper supports the idea of a European authority responsible for ensuring that the market functions properly. The authority should have the correct tools, such as “investigation, audit and monitoring powers, including the ability to audit algorithms”. The declaration also talks about sanctions that would act as a sufficient deterrent in the event of breaches of the rules.
A list of platforms?: “fake news”, according to Commissioner Breton
In response to questions from the press, European Commissioner Thierry Breton said he was “in agreement with the thinking behind the document”, which was mentioned in the meeting of European Telecommunications Ministers. “As part of the DMA, we are going to propose regulatory elements for systemic platforms that will apply beyond a given level”.
He also took the opportunity to deny the information - which he called “fake news” - that the Commission was preparing a list of 20 big technology companies (including Facebook or Amazon) that would be subject to stricter rules. “We intend to take action that will last for the next 10-20 years. We don't have a list, but we’re working on general criteria that are meant to last for a period of time”, he said.
The document can be found at: https://bit.ly/2SVLETb (Original version in French by Sophie Petitjean)