La rentrée ! Well, kind of… We are still figuring out the COVID rules as we go and most events and meetings are online. But other than that EU Brussels seems to be back to business as usual. Your policy team has been working hard to wrap up “consultation season”, taking positions on the Digital Services Act, Competition Rules, a Recommendation on Digitising Cultural Heritage and Electronic Evidence Gathering, among others. Have a fun read!
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Digital Services Act - Parliamentary Reports
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Not one, not two, but three European Parliament committees have adopted a position on this piece of legislation - the civil liberties and home affairs committee (LIBE), the internal market and consumer protection committee (IMCO) and the legal affairs committee (JURI). The fact that so many committees have reports on the DSA is indicative of a fight over competency and actually weakens the EP’s voice vis-à-vis the other EU institutions. We expect IMCO to get the actual legislative file. IMCO with rapporteur Alex Saliba pitched ex-ante rules for gatekeeper platforms and stricter rules on targeted advertising. [1] JURI’s rapporteur Wölken (S&D DE) managed to get a mandate for clear notice & action procedures instead of ex-ante content filtering. [2] In fact, all three reports speak out against upload filters. All three want the EU to hold on to key principles of the current E-Commerce directive like limited intermediary liability and no general monitoring. The IMCO and JURI reports also carry strong provisions in favour of interoperability.
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Digital Services Act - Consultation
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We at Wikimedia also submitted our position to the European Commission consultation on the DSA. [3][4] Among other things we want the lawmakers not to overlook how well some self-governing communities deal with the challenges of today’s online world. More specifically, we call for strong interoperability, portability and transparency requirements as well as rules for very large and gatekeeping platforms. We would like the prohibition on general monitoring to be strengthened and the main liability protections of the E-Commerce Directive to remain in place (act upon knowledge of illegal content, when no knowledge the service provider should enjoy protection).
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Competition
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After dropping the Inception Impact Assessment for a new competition tool in June, the European Commission polled stakeholders on experiences they have with competition in different markets, asking a lot of questions about the digital market and its actors. FKAGEU submitted an extensive response explaining how we see the structural issues leading to a lack of competition on the digital market (vertical integration of services and supply chains, information asymmetry on the customer side, etc.) as well as providing examples of market behaviour (extension of market power to related markets, anti-competitive monopolisation, gatekeeping, etc.). We supported the idea that a structural intervention is required and a new competition tool that would address the structural issues and be horizontal in scope should be created. You can check our response in detail[5a] and follow a dedicated meta page[5b] for updates.
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Ex-Ante Rules for Gatekeeper Platforms
Meanwhile it became clear that the European Commission is planning to propose obligations for gatekeeper platforms in “key services” - social networks, search engines, marketplaces (including app stores) and cloud services. The legislative proposal will include a list of banned behaviour, such as self-preferencing and a list of obligations, such as opening up the platform to competitors. The details are still in the making. [5c]
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Terrorist Content Regulation - TERREG
This zombie of the current legislative term has awoken and is looking for a new brain[6]. The first trilogue meeting after the pandemic break was a warm up as it focused on issues that are not as divisive as the corossborder removal orders and proactive filtering of terrorist content. We are arming up for the next few weeks as the pressure to close the file mounts and the fatigue of the participants grows. We wish there was more attention in the Member States paid to the fact that potentially a foreign government could order a removal of a content published by a citizen in a different country and that filtering out political speech is impossible to do right. Between the possible retightening of public health measures, a looming crisis, and a rule of law debate it is perhaps a lot to ask for. In any case, we are keeping you informed, and if you have an idea how to make our fellow citizens care about this, please let us know.
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E-Evidence Regulation
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The E-Evidence Regulation [7] aims to streamline the process of a prosecutor or judge in one EU country asking for electronic evidence (i.e. Facebook Messenger communications data) in another EU country. The way the proposal is written it would make it easier for authorities to request and gain access to data that shows which Wikipedia articles a user has opened. We believe that this isn’t proportional and necessary and thus sent a letter to the LIBE commitee’s rapporteur and shadow rapporteurs to ask them to fix this aspect and keep the current, stronger requirements for access to such information.
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Legislative Ticker
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The Austrian Hate Speech Law is going into the next round of its genesis. [8] Wikimedia Austria and epicenter.works had an open letter criticising some parts of the proposal. [9] As a result, the government carved out non-for profit services. The project still asks platforms to very quickly and without prior checks to remove questionable content. A requirement that lacks necessary safeguards against overblocking. We will stay engaged.
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As the European Commission is trying to come up with guidelines for Member States on how to implement Article 17 of the latest Copyright Directive, stakeholder groups have circulated letters in support of (civil society including Wikimedia and Communia [10], BEUC [11]) or criticising (rightsholders [12]) the Commission’s initial stance. These include the stance that Article 17 constitutes a “lex specialis” to the provisions of the Information Society Directive which provides Member States with maximum flexibility to include user rights preserving authorisation mechanisms in their national legislation.
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Public consultation on opportunities offered by digital technologies for the culture heritage sector was a quick shot questionnaire by the Commission [13] to see how to update its Recommendation on digitising and preserving cultural heritage [14] - the one that helped us get a public domain safeguard as part of the latest copyright reform. In our responses we basically asked the Commission to fund Europeana and other digitisation projects, to ensure laws allow for simple digitisation and online sharing and to reach out to the European Parliament and the Council of the EU to get to an agreement where all EU content can be public domain or freely licensed.
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The Code of Practice of Practice on Disinformation, an effort Wikimedia was part of in 2018, was evaluated. [15] The voluntary and oftentimes vague set of guidelines, according to the European Commission, has encouraged platforms to spend more resources and efforts to remove large chunks of misinformation quickly. However, also according to the text, platforms failed to become more accountable and transparent. The Commission is considering hard legislation in the area of disinformation.
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The European Commission publicly presented its proposal for a "Interim Regulation on the processing of personal and other data for the purpose of combatting child sexual abuse", which would derogate from the e-Privacy directive for 5 years. It aims to make it easier for authorities to access interpersonal communications from service providers for the processing of personal and other data for the purpose of combatting child sexual abuse online. We will follow this dossier with the help of EDRi. The proposal: [16]
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The European Commission is preparing to propose a Directive on Data Governance in October and a Data Act in 2021. The main goals will be to open public and business data up for other businesses and AI development. Details are scarce, but include the creation of something called “data spaces”, an unclear construct that might be something like a platform that collects data in a specific sphere like medicine.
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AI REPORTS: Members of the European Parliament’s JURI committee approved three pending reports on artificial intelligence. The first one on ethics, the second on civil liberties, and the third on intellectual property rights. [17] The Commission is currently writing up its proposal for legislation on this topic. Wikimedia has participated in the public consultation. We are pushing for a “public money, public code” principle and making sure no new IP rights are created on AI or using AI as an excuse. We also would like a simple and straightforward liability regime that doesn’t distinguish between different types of applications (i.e. high-risk vs. non high risk). [18]
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[1]https://www.politico.eu/wp-content/uploads/2020/09/SKM_C45820092418390.pdf
[3]https://twitter.com/dimi_z/status/1302945048795979782
[4]https://ec.europa.eu/digital-single-market/en/news/consultation-digital-services-act-package
[5a]https://upload.wikimedia.org/wikipedia/commons/6/63/FKAGEU_response_to_the_NCT_consultation.pdf
[5b]https://meta.wikimedia.org/wiki/EU_Policy/New_Competition_Tool
[5c]https://drive.google.com/file/d/1hCSh8SWs94MGBOT1AWTKmFmleEB3msM3/view?usp=sharing
[6]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2018/0331(COD)&l=en
[9]https://www.wikimedia.at/offener-brief/
[12]https://authorsocieties.eu/content/uploads/2020/09/letter-to-commissioner-breton.pdf
[14]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011H0711