Behind the European Union’s plan to rewrite the rules of online living


A woman working on her laptop in Paris on May 26, 2020. Photo by Arnaud Finistre / Hans Lucas via Reuters Connect.

As autocratic regimes more aggressively restrict freedom of expression on the internet, it is all the more important for the European Union (EU) and the United States to come up with a positive and alternative model of online regulation, two European Commission politicians said Wednesday at the 360 ​​/ Open Summit, organized by the Digital Forensic Research Lab of the Atlantic Council.

Prabhat Agarwal, Head of the Commission’s Digital Services and Platforms Unit, and Gerard de Graaf, Director of Digital Transformation in the Commission’s Directorate-General for Communication Networks, Content and Technology, were the main drafters of the Digital Services Act (DSA). The bill is a comprehensive and one-of-a-kind regulatory framework to govern digital services proposed by the European Commission to EU lawmakers in December. Aiming to make the internet more secure while protecting human rights and fundamental freedoms, DSA addresses modern digital challenges, from moderation of content to transparent communication and monitoring of data.

The DSA is currently being considered by the European Parliament and the European Council for review, with the aim of adopting it in early 2022. And its broad scope makes it “more than just an EU regulation; it’s a potential model and the only full democratic standard to engage with at the moment, ”said moderator Rose Jackson, director of the Democracy & Tech Policy Initiative at the Digital Forensic Research Lab.

Below are some of the highlights from their discussion.

What does the DSA do?

  • The DSA aims to protest users’ rights to free speech while allowing them to report illegal content, protecting their privacy and allowing them to see why certain advertisements or online content are shown to them, said. its editors. Authorities will receive unprecedented amounts of data for better public oversight. And platforms will receive clearer instructions on accountability while facing a single point of contact for regulatory oversight: the EU, as opposed to each of its twenty-seven member states.
  • The proposed legislation builds on the existing EU e-commerce directive, strengthening the liability protection of intermediary services such as hosting sites and caching services, and extends to new areas, with a common framework for enforcement and additional due diligence obligations which may include environmental and human rights-checks obligations. This includes a “good samaritan” clause, which protects the platforms from liability as long as they make good faith efforts to remove illegal content promptly.
  • The e-commerce directive mainly focused on cloud infrastructure and web hosting services. DSA is adding new categories for online platforms that cover marketplaces (such as app stores or sharing / gig economy platforms) as well as large-scale social media sites. Infrastructure intermediaries, such as domain registries or wifi hotspots, have the smallest regulatory responsibilities, while online platforms come under increased scrutiny depending on the size of their audience. “We are of course dealing with very powerful platforms which are, in some cases, so powerful that they can set the rules of the game,” said de Graaf. “Since so many businesses and users depend on these platforms, it is [their] interest that the competition works.

Shaping the “emergency exits” of the digital world

  • By clarifying the expectations as well as the liability issues related to their content, platforms could benefit from the DSA, its editors said. “It is difficult to evolve in Europe, because Europe is fragmented», Underlined de Graaf. “The rules are not the same. We have twenty-seven member states. Even small platforms that are successful in one state can struggle to adapt to the individual rules of another: “You have to adjust your business model. You need to check which rules apply to [you], and it slows you down. And the Internet is all about scale and speed.
  • Some human rights experts fear that additional regulations may limit freedom of expression. “It is not an instrument for authoritarian regimes to dictate how people can express themselves online,” Agarwal said. “An analogy I often use is that it’s about setting emergency exits, alarm buttons, security devices that you would expect if you are going to a shopping mall or concert hall. “Other European laws define what kinds of speech are legal and not, and bad actors will abuse regulations regardless of the safeguards enshrined in law,” Agarwal said: “A characteristic of authoritarian regimes is that they do not respect rights first. “
  • The introduction of robust and mandatory data reports is essential. “This type of data is going to be generated, so if it is abused by an authority, it will leave an unmistakable trace,” Agarwal said. The transparency provisions could also significantly increase knowledge of user behavior on these platforms, enabling independent researchers, usually housed in academic institutions, to create new studies and shape future governance based on factual data.

A necessary conversation

  • The Electronic Commerce Directive was enacted in June 2000. As de Graaf noted, life online has changed dramatically since then. In 2002, 9% of Europeans made their purchases online; today, 70% do and 40% of companies sell through online platforms. “Platforms have become a lot more important in our lives in terms of social media, in terms of markets. They are also very important vehicles for small and medium-sized businesses in Europe to reach their customers, so it’s time to look at this framework, ”said de Graaf.
  • In 2018, there were nearly 10,000 high-growth social service and accommodation platforms in Europe. “Most of them are small,” said de Graaf. He noted that the current structure of the EU makes it difficult for them to grow, citing Spotify as an example. “How did he grow up? It started in Europe, then it went to the United States. It was scaled up in the United States and then it came back to Europe.
  • But the sheer size of platforms like Facebook – which has 423 million monthly users in Europe, out of a population of around 750 million – illustrates the need to create a framework that is versatile enough to effectively regulate large and large platforms. on a small scale. “Very large” online platforms, defined as reaching 45 million users (or 10% of the EU population), face more obligations under the proposed DSA. They are required to have compliance officers, independent audits, increased access to data, and improved transparency reporting, among other responsibilities. “It is an asymmetric obligation,” said de Graaf. “If you are in a position of user and consumer, like a social media company, you have greater responsibilities. These due diligence obligations are the hard core of digital services law.

Nick Fouriezos is an Atlanta-based writer with signatures from all US states and six continents. Follow him on Twitter @ nick4iezos.

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