Hello, everyone! The new year in Brussels is off to a rolling start, with about a dozen digital files continuing their legislative path. We are expecting the Commission to release a couple of new proposals in the first half of the year - most notably the so-called “Right to Repair” and “Gigabit Plan” initiatives. After that the focus will shift towards finalising whatever possible and preparing for the European Parliament elections next year.
=== Digital Services Act ===
The EU’s new content moderation rules, the Digital Services Act (DSA), officially entered into force on 17 November 2022 and regulators and providers are now grappling with implementing them in the foreseen terms. [1] The DSA comes with a notices-and-action system that frames how users can send notices about illegal content service providers. Providers of online platforms are furthermore required to have an internal complaint handling system (i.e. for a user to be able to object to a decision). The next steps on the ladder are an optional out-of-court dispute settlement mechanism (available in all Member States and languages). At the very end, disagreements about content moderation can end up in front of a court and judge. All these dispute handling will function between the platform and users, not in-between users or groups of users themselves.
---
Additionally, Very Large Online Platforms (VLOPs), will need to be more transparent in the way they work, as well as publish annual risk assessments, mitigation plans and third-party audits of their content moderation practices. Every platform with over 45 million monthly users in the EU will be designated by the Commission as a VLOP. Service providers have until 17 February this year to communicate their user numbers and the Commission is expected to publish the initial list in March or April.
---
The European Commission will also charge VLOPs a fee for regulating them. The fee structure needs to be decided upon in the coming weeks. The Wikimedia Foundation provided public feedback making the argument that VLOP services that are run non-commercially, dedicated to enriching the public good, and owned and operated by a provider that is a recognised as a charitable organisation should be exempted from said fees. [2]
=== Age-Gating ===
The question of how to handle sensitive or adult content on the internet isn’t new. We see it regularly pop up in regulatory conversations and proposals across the globe. Our communities have several times and at length discussed how to handle explicit content. From a service provider perspective, we wouldn’t like the Wikimedia Foundation to collect more information about its users, making potential “age-gating” provisions difficult to accept.
—
We believe this is an important conversation that we can’t run away from. This is why Wikimedia Europe has applied to become a member of the Commission special group on the EU Code of conduct on age-appropriate design. [3] Members will be tasked to come up with recommendations and best practices on how to handle such questions.
=== Child Sexual Abuse Material Regulation===
Quick reminder: The Child Sexual Abuse Material Regulation (CSAM) will oblige platforms to detect and remove known or suspected child abuse materials, normally following a court order or an order by an independant authority. While most parts of the proposal seem acceptable, the most controversial bit is that orders will be able to force messaging services to scan all direct messages of all their users for suspected abuse material. This would in practice mean that end-to-end encryption for messaging services becomes impossible. While Wikimedia doesn’t run a messaging service, our projects will be covered by the other provisions of this regulation, which is why the WMF has submitted public feedback. Apart from criticising the interpersonal communication scanning obligations, the position also emphasises the issues with hashing & scanning as well as the effects such practices might have on marginalised communities. [4]
---
In the European Parliament the lead committee is Civil Liberties, Justice and Home Affairs (LIBE) with MEP Javier Zarzalejos (ES, EPP) holding the pen. His draft report is scheduled for 14 April, the deadline for amendment in committee is 19 May.
---
In the meantime, Member States are beginning to position themselves on the file. France leads a group of countries that really dislike the suggestion to create a central EU agency. Berlin and Vienna go hard against the proposed detection orders, especially the blanket scanning of interpersonal messages, over fears for privacy. Austria refers to the measure as a “massive encroachment on fundamental rights.” The Netherlands and Lithuania are joining this group by sharing fears that end-to-end encryption would be threatened. Beyond that, however, few other countries even mention privacy.
=== Net Neutrality ===
The European Commission and, most notably, French Commissioner Thierry Breton are pushing the idea that large online platforms should pay a fee to internet providers for using their networks. Wikimedia engaged in those discussions a couple of times in the past months [5][6] (Shout-out to Naphsica from WMFR for all the work). We criticise the debate which is focused solely on “big tech” and “big telcos” and emphasise that we need to keep an infrastructure that treats everyone equally.
---
In the meantime a draft “Gigabit Infrastructure Act” has leaked [7] and includes obligations for new buildings to have fibre wiring installed as well as provisions easing the permit-granting procedures for telco infrastructure. It markedly doesn’t have a provision mandating online platforms to pay telecoms. According to our knowledge there will be public consultation on these aspects published in February.
=== Political Advertising Regulation ===
The EU is in the process of creating specific legislation for online political advertising. [8] The idea is to set strong transparency rules, oblige platforms to clearly mark such ads and limit the use of personal data.
---
Last week a second European Parliament committee, Internal Market and
Consumer Protection (IMCO), adopted its amendments. They were largely in line with what the lead committee, Civil Liberties and Home Affairs (LIBE), had already passed. The EP wants to go further on restricting the use of personal data to target online political advertisements. The use of personal data to target online political advertisements would be limited to data explicitly provided for this purpose by citizens with their consent, excluding the use of behavioural and
inferred intelligence. In practice this would mean that in the 60 days prior to an election or referendum, different political messages may be spread only on the basis of a voter’s language and the constituency they live in.
---
Another big sticking point is the definition of political advertisement. Shall lawmakers strictly include only ads paid to them as such, or also try to cover more convoluted publicity schemes? Currently the definition is rather broad and large platforms worry that they would have to mark every political commentary as political advertising. However, if the definition is too narrow, too much of what is actually paid for might slip through the cracks (imagine a paid interview for instance). Either way, the regulation only targets providers of advertising services, so Wikimedia projects are out of scope.
---
The parliament at-large is expected to adopt its negotiating position in February and then hit off the trilogues. The Council position is much more timid when restriction the use of personal data.
=== Orphan Works Directive ===
The European Commission has published a report on the application of the Orphan Works Directive. [9] Spoiler: It's not doing great.
---
Instead of me summarising, here are a few quotes:
“It is clear that the Directive has only partially fulfilled the goal of facilitating the mass digitisation of orphan works by certain institutions. The Directive’s mechanism has been rarely used in practice and its relevance as a potential tool for the mass digitisation of cultural heritage has therefore proven to be limited.”
---
The Commission is now hoping that the out-of-commerce works mechanism, provided for it the Copyright in the Digital Single Market directive, will help remedy the situation.
=== Copyright Transpositions ===
Yeah, speaking of the copyright directive, don’t forget that a number of member states are still in the process of transposing it (looking at you, Bulgaria, Finland, Poland and Portugal!). In the past few weeks two more countries have accomplished the task - Sweden and Czechia. Sweden has made the “public domain safeguard” apply to all types of works, not just visual art (Kudos to Eric from WMSE!), while the Czech Republic has transposed the exception for parody, pastiche and caricature as a universal one, instead of one that just applies to UGC online platforms. For a comparative analysis of all transpositions, please see Communia’s “Copyright Eurovision” portal:
eurovision.communia-association.org
=== Italian Troubles ===
The Italian Ministry of Culture published its policy plan for 2023 [10], which expresses the intent to monetise every use of cultural heritage (material and immaterial). Italy already does so by applying an “administrative fee” to uses of cultural heritage material, thereby circumventing the “public domain safeguard” in the copyright directive (which covers copyright and related rights).
---
At the moment Wikimedia Italia has a system in place which includes asking institutions for permission to release images without a fee, including for commercial purposes. The Ministry of Culture, however, explicitly writes that there must be very limited cases in which fees are not requested, which is a cause for worry. Wikimedia Italia has a meeting with them in a few weeks and would be very appreciative of any studies, arguments, showcases that demonstrate the limits of such an approach. Please get in touch if you have anything!
===
[3]https://digital-strategy.ec.europa.eu/en/policies/group-age-appropriate-design
[5]https://wikimedia.brussels/net-neutrality-the-fair-share-debate/
[7]https://drive.google.com/file/d/1piqBypWCrlEzOypYazC0_9s9KhOdSwWp/view?usp=sharing
[8]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2021/0381(COD)&l=en
[10]https://www.beniculturali.it/comunicato/dm-08-13012023-