Let’s start with the unpleasant: The war in Ukraine has of course made it to the top of everyone’s agenda, as it should. Work on files still continues, but the energy is different and we expect the pace to slow down. At the same time, this war is being played out on online platforms and certain aspects are being picked up by lawmakers when discussing their regulation.
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DIGITAL SERVICES ACT
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The DSA is in trilogue, i.e. the three main EU bodies have adopted their respective positions and are now trying to hammer out a common version. Our main headache in the original proposal was the notion of automatic assumption of “actual knowledge” of illegal content upon receipt of a user notice. The fix to that seems uncontested. We are still waiting for news on the definitions article, where the Parliament added a differentiation between content moderation by the service provider and users. Something we asked for and supported.
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Else, the dark pattern prohibition proposed by the Parliament (designs that nudge users to accept tracking) seems to be welcomed by Member States.
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On a more general note, we are seeing the Russian Invasion starting to play a role in discussions about content moderation. Lawmakers were called out for having proposed a “media exemption” which would prohibit online platforms from interfering with media content. Something they are currently asked to do to stem disinformation about the war. There is also some interest in how Wikipedia handles such fast-developing news and events. We plan to reshape a great Twitter thread into a blogpost for lawmakers, in order to explain community content moderation better.
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Data Act
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Last week the European Commission presented its Data Act proposal. A Regulation that is mainly focused on business to business data sharing and portability, but that also includes a few elements we care about.
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It empowers users to have access to data a service or device has produced and be able to port it (articles 4&5), which is welcome. It also would allow governments to access business data in extraordinary circumstances, like a global pandemic (Chapter V). Safeguards and limitations need to be waterproof here.
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Most importantly, though, the Data Act also contains “a revision” of the sui generis database right (SGDR). A copyright-like additional layer on non-original databases that we would like to see abolished. In Chapter X the Commission “clarifies” that these protections can’t apply to machine generated data. We think that doesn’t go far enough and are drafting an amendment to get rid of a much larger chunk of unwanted SGDR protection. Our umbrella association Communia is also organising a Salon on the SGDR on 2 March.
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The Digital Markets Act
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The conversation about imposing an interoperability obligation on gatekeepers is stuck. The Commission is “looking for evidence” from messaging services that interoperability is actually needed, while smaller providers are insecure about it as too many details are still unclear.
In the meantime, civil society (including us) circulated an open letter to the Commission, the French Presidency and MEPs on involving users in enforcement procedures.
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Artificial Intelligence Act
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The AI Act that is now being mulled over in a number of parliamentary committees deals with three instances of AI use: prohibited, high-risk, and one that requires special transparency. That last category includes instances of individuals interacting with an AI-based bot, when emotion recognition or biometric categorisation is required, or in the case of deep fakes. We don’t think that any artificial intelligence tools Wikimedia editors and staff currently use are covered by the new obligations, but as lawmakers start editing the proposal we need to stay on top of changes. The discussion around deep fakes is of particular interest to us, as Wikimedia content can be used for their creation, but also such content could become a misleading source of information.
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Online Political Advertising .
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Normally this regulation should only do what its name says: set clear rules on political advertising, especially during electoral campaigns. However, the definition of political advertising has us somewhat worried, so we are running an extra check on it:
Article 2.2
‘political advertising’ means the preparation, placement, promotion, publication or dissemination, by any means, of a message:
(a) by, for or on behalf of a political actor, unless it is of a purely private or a purely commercial nature;
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(b) which is liable to influence the outcome of an election or referendum, a legislative or regulatory process or voting behaviour.
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Finland Copyright Reform
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The copyright reform in Finland was going rather well. User rights were being enshrined and balanced exceptions drafted. But over the past months collective management organisations (CMOs) in Finland have pushed very hard and the lead civil servant was replaced essentially by a lobbyist hired as a chief consultant to the Ministry. The Ministry has now redrafted the document, but it refused to present the new version. Instead they just let bits of information slip out. It seems like they are opting for a rewrite that maximises CMO turnover and includes the bare minimum in terms of user rights. For information on this Finnish drama we have only Finnish language sources (ask a Finn or use deepl):