The European Commission’s flagship digital regulation, the DSA on content moderation, is starting with a brawl over European Parliament committee competencies and being torpedoed by Member States’ quickly setting national rules. For more on the French government’s moves in this direction we have invited Wikimédia France’s new public policy person, Naphsica, to share some insight. Please welcome her to the group!
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Digital Services Act
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Member States in a frenzy
As stakeholders and MEPs are unpacking the European Commission’s new proposed rules on online content moderation, Member States are speeding to create precedens in national law, presumably to help them push certain aspects through in Brussels. France is discussing a new amendment to the law on “Republican Values” that would see a “duty of care” for platforms (see more below from Naphsica). Austria has not given up on it’s “online hate speech law” that is mandating platforms to delete “obviously illegal” content within 24 hours. [2] Of course, this is largely copied from Gemany’s Network Enforcement Act (NetzDG). Meanwhile Poland wants to slap humongous fines on platforms that delete content that is not illegal under Polish law [3] and Romania trying to criminalise the creation of fake accounts on social media. In short, it is a mess and Brussels is trying to use that by telling tech giants to support EU-level rules if they want to avoid a fragmented national landscape. [4]
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What about Wikimedia?
The Regulation tries to cover everything from liability exceptions for hosting providers over “notice & action” rules to content blocking disputes. And while we welcome the attempt to set a general frame for content moderation practices across platforms, we are of course worried to not impede functioning, self-orgnised community moderation practices. As thew WMF legal team has sharply described earlier [5]
The first important point we will address with the European legislators is Article 12, which basically says that platforms must disclose their terms of service and enforce them“in a diligent, objective, and proportionate manner.” Particularly the objectivity seems to be a tricky legal concept here. We basically worry that editors and readers unhappy with community decisions will try to go over the WMF to contest it. This scenario should remain an exception.
The second key point we want to raise is within the “notice & action” system. Article 14 says that an online provider will be presumed to know about illegal content — and thus be liable for it — once it gets a notice from anyone claiming that content is illegal. This clause is risky, as the platform’s only certain way to avoid liability is to delete it. We we will be making the argument that it needs to be explicitly that such a notice is only a claim and the platform cannot be presumed to know about illegal content at this point.
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Who do we talk to?
We talked about Member States jockeying into position, but what about the other co-legislator, the European Parliament? Well, Brussels wouldn’t be half as much fun if there wasn't a brawl among committees who gets a hot file. Long story short, the Internal Markets and Consumer Affairs committee (IMCO) is expected to get it. But this will only be official after a plenary vote in February and is expected to then be officially contested by other committees. Still, in IMCO we know that the rapporteur will be Christel Schaldemose (S&D DK) and the shadow rapporteur carrying the most votes will be Arba Kokalari (EPP SE). [6] If you happen to know them, ping us ;) Actual legislative committee action is probably going to start in March.
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French Law on “Republican Values”
A government amendment to the “Republican Values” law has been passed in committee at the National Assembly in Paris following Donald Trump's censorship by Twitter. The Secretary of State for Digital, Cedric O, decided to transpose DSA provisions in advance into this French law.
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The government amendment was taken over by MP Laetitia Avia and introduces stricter “duty of care” obligations for "large and very large online services", while also devolving new powers to the Superior Council of Audio-visual. [7] Wikimedia projects are within its scope.
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Wikimédia France had a meeting with a MP, Paula Forteza, to discuss issues regarding the text. She will table an amendment to protect community and commons based projects like Wikipedia. It should be discussed at the public session that begins 2 February. ======
Data Governance Act
Back in Brussels, we provided feedback [8] to the European Commission on its Data Governance Act proposal. [9] Our main points are that projects of collaborative knowledge like Europeana and ours should not fall under the new notification regime for “data sharing services” and we thus need to clarifly language on both the provided exception and the definition of “data altruism”. We also emphasise that it is crucial to not undermine the GDPR by creating a parallel regime for certain types of data and that we really support the Commission trying to limit the scope of the sui generis database right. -----
See past report for more details on the actual proposal: [11] -----
We have prepared a couple of amendments. The first one clarifies that projects of “collaborative knowledge” are “general interest”, which is a lot of terminology, but is fundamental to the scope of several provisions with this Regulation. The second one basically tries to… well… kill the sui generis database rights. Take a look at the key MEPs and in case you know someone, you know where to find us ;) [12]
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TERREG
To recap: The European Union is trying to pass rules on how to combat terrorist propaganda online since its last legislative period. [13] Most prominent is perhaps the proposal of a one-hour rule: a legally binding one-hour deadline for content to be removed following a removal order from national competent authorities.
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We came closer to the end of this unfortunate legislative saga when the file was rushed through the trilogue process under the German Presidency that managed to reconcile all the controversial points just before the holiday break in December. In January the Civil Liberties Committee adopted the trilogue result by an overwhelming majority, while the Greens/EFA Group voted against it. Civil society organisations like EDRi and ourselves are unhappy with the outcome, as despite some additional safeguards to free expression, user protections remain inadequate. [14] The final plenary vote has been scheduled for April. In the meantime, we will try to better analyse and explain what this legislation means for free knowledge. Stay tuned! ======
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[2]https://www.euractiv.com/section/data-protection/news/austrias-law-against-online-hate-speech-question-marks-in-the-home-stretch/
[3]https://www.euractiv.com/section/politics/news/poland-readies-law-blocking-social-media-from-banning-users/
[4]https://www.ft.com/content/2bd619a2-dee0-492a-b397-73a0ba00e369
[5]https://wikimediapolicy.medium.com/how-europes-proposed-digital-services-act-can-preserve-wikimedia-or-let-it-get-constantly-trolled-11309e71dbe4
[6]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0361(COD)&l=en
[7]https://www.assemblee-nationale.fr/dyn/15/amendements/3649/CSPRINCREP/1770
[8]https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12491-Data-sharing-in-the-EU-common-European-data-spaces-new-rules-/F1465700
[9]https://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2020/0767/COM_COM(2020)0767_EN.pdf
[10]https://lists.wikimedia.org/pipermail/publicpolicy/2020-December/002041.html
[11]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=SEC(2020)0405
[12]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=SEC(2020)0405
[13]https://www.europarl.europa.eu/legislative-train/theme-civil-liberties-justice-and-home-affairs-libe/file-preventing-the-dissemination-of-terrorist-content-online
[14]https://wikimediapolicy.medium.com/terrorist-clicks-ca373e84796f