The French Presidential elections have certainly changed dynamics in Brussels. The French Presidency of the Council is willing to accept compromises in order to wrap up reforms and show progress. Critics say this leads to technically half-baked solutions. Our wrap up of the month of March at warp speed!

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DIGITAL SERVICES ACT

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After its sister project, the Digital Markets Act, has been agreed upon (read below) all eyes are seemingly on this “content moderation law” now. The Council, Commission and Parliament are meeting at both technical and political levels every second week now. 

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Actual Knowledge: All three institutions are in agreement to improve the initial language about when a notice sent to a service provider leads to actual knowledge of illegal content. It is now clear to everyone only some notices constitute such proof and very clear in the text that service providers have the freedom to make a call. A win we advocated for. 

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Whose rules? The DSA defines terms “terms of service” as pretty much any rules valid on a platform. We are asking the institutions to make it explicitly clear that there is a difference between rules imposed by the service provider and rules created and enforced by communities of platform users. The Parliament has incorporated this change, but the Council is still somewhat sceptical, mainly because they believe the original wording already covers this implicitly. Negotiations continue on this point. 

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Who will regulate? In a late amendment, the Council took the position that the European Commission should be responsible for regulating Very Large Online Platforms (VLOPs), while national regulators will be responsible for the rest. For Wikimedia, only Wikipedia would be a VLOP. Meaning that Wikipedia would be European Commission competence while Wikimedia Commons and Wikidata would be competence of a national regulator where the Wikimedia Foundation decides to appoint a legal representative. To make things even messier, some of the obligations that VLOPs must also comply with (e.g. trusted flaggers & out-out-court dispute settlements) will be shared competence between the national regulator and the Commission. We’d prefer a clearer separation, but at least for these the Commission decisions would overrule the national ones. 

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Who will pay? If a user takes a platform to an out-of-court dispute settlement body (over a content moderation decision), then the platform and the user will pay a fee, but if the user wins, the platform will have to cover both fees. On the other hand, if the user loses, the platform won’t be able to push the legal cost on them. We still don’t know what the fees will amount to. 

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Who will pay? #2  Somewhat surprisingly the Commission is now taking the position that if it is to be the regulator for VLOPs it will need to charge a fee to them in order to cover the additional costs. Apparently this is a principle that already exists in the financial sector.  Lawmakers involved in the negotiations haven’t seen concrete wording yet, but from three independent sources we have confirmation that if this gets accepted the DSA won’t mention any actual amounts, rather give the Commission the power to set up a fee structure in a delegated act. We have reached out to the Commission who have ensured us that they are well aware of the different nature of platforms (including their purpose and tax status) and will make this a factor in calculating the amounts. Still a lot of fog shrouding this point. 

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“A War Clause”: We kid you not, this is what an 11th hour suggestion goes by in the corridors and chat windows. It is a proposal that would let the Commission, in extraordinary circumstances, ask platform providers to moderate certain dangerous content very quickly. Now, a similar provision already exists in other (e.g. Anti-Terrorist) regulations, so this is not unheard of. But we worry a lot about this, together with many EDRi members. At the very least we are asking for a much clearer definition on what constitutes an extraordinary circumstance, who establishes it and for how long. Further, we demanded safeguards against censorship and overreach. That being said, rules allowing authorities and the service providers to act very quickly in case of threat to life and limb already exist and work well, so there is a way to handle this. 

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Targeted Ads: It looks like all EU institutions can agree that sensitive data (e.g. religious and political preferences) and data of minors should be prohibited for targeted advertising. Not the really big coup the Parliament was envisioning, but a major step. 

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Nota Bene: We normally share plenty of links and sources in this monitoring report. For confidentiality reasons and to protect sources we are unable to do so in this case. If you like additional insight, please get in touch off-list. 

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DIGITAL MARKETS ACT

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Stick a fork in it, it's done! The EU law on competition rules for online platforms is coming into force next year. Several major wins for civil society and competition there. Pre-installed apps that can’t be deleted will become illegal. We will be able to send messages from one instant messaging application to another. However the interoperability win has some defects. A humongous lobbying push by dominant platform providers has convinced the lawmaker that things like group calls are extremely hard to do across different services. Result is that such features will become available at a much later stage, if at all. 

Anna Mazga has the deep dive for you: https://wikimedia.brussels/dma-heated-trilogue-negotiations-concluded-with-partial-interoperability-gains/