Hello, folks! This month, for a change of pace, we have decided to list all the files we are working on and give you a tl;dr overview of what they are about. So a bit of a fireworks edition, since it is still consultation season and a lot of ideas are being floated. This will continue until the legislative funnel narrows toward the end of the year. For now it is a frenzy...
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
Team News: The EU Policy Team Grows
In June Dimi’s family welcomed a daughter! We congratulate the parents of baby Lea and hope she will share her dad’s interest in EU affairs :)
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TERREG a.k.a. “How to handle terrorist content online”
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According to the French Constitutional Court, decisions about taking down content should be issued by courts. [1] We’re talking about the recent decision to strike down the so-called Avia law, a much debated and controversial French legislation dealing with hate speech and terrorist content online. The Court said administrative authorities cannot take decisions about removal of content. These should be judicial ones. In consequence, the 1 hour removal rule for terrorist content has been ruled unconstitutional when taken by an administrative authority. Rings a bell? These same provisions are a part of the Terrorist Content Regulation proposal on the EU level. The fact that these ideas are already considered unconstitutional in one of the Member States puts the legislators in a delicate spot. The trilogues are now stalling, so most likely we will see in September how the French Avia saga influences the debate.
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DSA a.k.a. “How to be a good platform?”
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Finally the European Commission has put some meat on the bones of a mythical Brussels monster called the Digital Services Act. The cornerstone legislative project of this legislative term has now two Inception Impact Assessments. One outlines the possible scenarios for ex-ante rules for online services that are considered gatekeepers in their respective markets; the other drafts a possible framing for responsibilities of platforms, both those hosting user-generated content and selling goods and services. The European Commission says the future legislation will build on the Copyright Directive and Terrorist Content Regulation (if, sorry, when adopted).
The EC requested feedback on the scenarios that range from creating a list of restricted practices to requiring interoperability between services in certain cases[2]. Changes in responsibilities could range from codifying procedural obligations (now only recommended) to creation of a comprehensive system of regulatory oversight, enforcement and cooperation supported at the EU level. [3]
Both Wikimedia Foundation and Free Knowledge Advocacy Group provided feedback to these plans. For details, check our remarks on ex-ante regulation [4][5] and responsibilities of platforms. [6][7]
The season for insights into the EC’s thinking is not over, however. We are working on a monstrous public consultation, which we have until 8 September to submit. Please pitch in, if you have the time. [8]
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Competition rules for online services
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The European Commission means business if it comes to tackling the notorious platforms, as the feedback+consultation push has actually 3 parts. In addition to ex-ante rules and responsibilities overhaul, the EC considers creating a new competition tool that could tackle some of the issues created in the ecosystem of online intermediaries. [9]
The new competition tool could be either dominance-based (targeting dominant companies) or market structure-based (addressing structural competition problems and not only the companies that are already dominant). Each of those approaches could either have a scope limited to a certain market or a horizontal scope (applicable in many different markets).
In our feedback to the Inception Impact Assessment we support the approach that combines structural approach with a horizontal scope. For details, please see the contribution by Wikimedia Foundation [10] or Free Knowledge Advocacy Group. [11].
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e-Evidence & Europol a.k.a. “How can a Slovak judge request data from Facebook in Ireland as part of a trial?”
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The Wikimedia Foundation has worked with local communities to comply with French and German court orders requiring a change on Wikipedia (e.g., article subject defamation). But it still requires orders that are enforceable in the U.S. except in emergency situations. That has tended to mean that European authorities contact their colleagues in the U.S. to issue us a binding order of some kind. As the new Regulation on judicial and policy cooperation are only addressed at Member States of the EU, this will likely not change. However, such Regulations often set standards copied to international agreements in the future.
The current proposals would let any Member State authority to order user information from online service providers in other Member States, there’s only a need to notify the host authority (which currently has to be involved and agree). We and other civil society groups are asking if the principle of "double punishable offence" (i.e. an act has to be illegal in both countries) shouldn’t be upheld. Also, if the host authority of the service provider shouldn’t have a blocking power in case of fundamental rights issues. This would be to safeguard against abuse of arbitrary laws in some Member States.
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Disinformation a.k.a. “Fact-checking, funding, transparency, platform rules”
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This is a long and painful conversation, cascading into the DSA discussion regularly. Before the last EP elections the Commission had social media platforms and advertisers sign a code of conduct which required everyone to be more transparent on campaign spending. The Commission is not very happy with the results and would like to do more, but hard law is difficult as the very thorny issue of protecting free speech cannot be avoided. It looks like the proposed actions will include, as a minimum, compulsory, monthly transparency reports by social media services and funding for fact-checkers and media literacy. We are waiting for the next steps, likely a communication by a Commissioner.
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Data Strategy a.k.a. “open government data, b2b data, data hubs”
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Another consultation with a somewhat fuzzy focus. It looks at how to define high-value datasets (sets of data that Member States’ authorities must open up), how to encourage business-to-business data sharing and whether to establish data hubs (imagine portals for sector specific data). We submitted, apart from the survey answers, a position on what quality criteria high-value datasets should include and what “data trustees” could look like[12]
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Artificial Intelligence a.k.a. “Liability and safety rules for machine learning systems.”
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A very messy business, where the EU wants to move ahead and create facts (and liability rules) before the applications and platforms become too powerful to regulate. At the same time, it would like to boost the AI ecosystem in Europe. Anything from research funding, through skills training and intellectual property, to product liability is being discussed here. We have submitted our consultation answers along four main principles:
1. Public money, public code" in administration and funding
2. No new IP rights (perhaps even kill some sui generis rights)
3. Universal rules, as opposed to specific rules for "high-risk apps" to be preferred
4. Liability to be clarified only if necessary due to gaps in legislation (otherwise current product rules)
For details, please check our submission: [13]
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CDSM Transposition a.k.a. “The copyright reform, but 27 times.”
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That is both huge and messy. We have some sort of draft legislative texts in France, the Netherlands, Belgium, Hungary, Croatia and Germany. You can follow the transposition processes on the Communia DSM Directive Implementation tracker: [14]
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e-Privacy & GDPR review a.k.a. “Users must enjoy privacy to edit freely.”
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There are two key dossiers open on the privacy front: The e-Privacy Regulation, which deals, among other things, with tracking cookies and paywalls and has been stuck in Council for some time now. The other one is the GDPR review. On both we follow the lead of EDRi the European umbrella organisation of digital rights groups that Wikimedia is part of. [15]
You can read some details of the GDPR review from the EDPS here: [16]
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News from Hungary
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The Court of Justice of the EU (CJEU) ruled against Hungary's "civil transparency law" which mandated additional reporting for NGOs receiving donations from abroad (but was more propaganda than actual substance, mainly trying to create the impression that NGOs receiving some funding from abroad are foreign agents trying to dismantle Hungary's sovereignty). The government has indicated their intent to rescue the law with some modifications. Wikimedia Hungary skirted just below the funding limit last year and was expected to be covered by the law in 2020. You can check out the details of the court decision [17] and the news coverage in English [18].
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END
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[8]https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_the_Digital_Services_Act_Package
[9]https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12416-New-competition-tool
[12]https://meta.wikimedia.org/wiki/EU_policy/Consultation_on_a_European_Strategy_for_data
[14]https://www.notion.so/DSM-Directive-Implementation-Tracker-361cfae48e814440b353b32692bba879
[15]https://edri.org/eprivacy-directive-document-pool/
[18]https://hungarytoday.hu/cjeu-rules-against-restrictive-hungarian-ngo-law/
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