Salut la liste !
There is little real progress on the Digital Services Act, as the European Parliament committees are bickering about competencies. On the other hand TERREG and the Data Governance Act and E-Evidence are moving ahead. Sorry for the longer read, but plenty of nuance to unpack.
Anna & Dimi
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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TERREG
We have the final vote date for the long-debated terrorist content regulation proposal. [01] The Plenary will take their decision in the last week of April, most likely on April 28th. Despite many interinstitutional clashes [02], the regulation is still too blurry, too broad, and infringing on rights to express political views and to access information.
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EDRi together with Wikimedia Deutschland, Access Now, and Civil Liberties Union for Europe launched an open letter [03] to MEPs urging them to vote “no” on this proposal. We cite the danger of content filtering, the over policing of content by state and private actors, and the cross-border prerogatives as main reasons why the proposal should be rejected. Please spread the word and, if you can, contact your favourite MEP to make sure they are on the right side of history with this one.
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Digital Services Act
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Our basic position hasn’t changed [11] and we are still making the rounds with MEPs and Member States so chart the map.
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Meanwhile compétence conflicts between the Internal Market Committee (IMCO) and the Judicial Affairs Committee (JURI) as well as the Industry, Trade and Research Committee (ITRE) and keeping MEPs from actually delving into the text. We expect a final decision to be reached during the coming two weeks and to be adopted during the plenary session thereafter. [12]
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In the Council, Germany worries about how the DSA will impact its national NetzDG law. Denmark and Ireland want more requirements for smaller platforms “which can host extremist groups”. France was asking about illegal products on marketplaces. The Dutch seemed to complain to the Commission about not including disinformation provisions. Malta is concerned that by having to respect national law, platforms would be forced to disable access in one country or another, which would lead to fragmentation of the online environment. We know all this from written Commission answers to the Member States, which are not public.
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Data Governance Act
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Both the Portuguese Presidency and the European Parliament rapporteur Angelika Niebler (EPP DE) published their draft for changes to the Data Governance Act. [13][14] Unfortunately neither takes into account our demands to explicitly state that “collaborative knowledge” projects are “general interest” services, which could be important for the requirements our projects fall under.
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However, Ms. Niebler proposes to define “data intermediaries” as providers of data sharing services with the main objective of establishing a business, a legal and potentially also technical relation between an indefinite number of data holders, including data subjects and an indefinite number of potential data users and which assists both parties in a transaction of data assets between the two”. The Presidency of the Council on the other hand makes clear that “data sharing services” are “commercial services”, which might be good enough.
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Both drafts keep the limitation on the sui generis database rights in place, which is welcome.
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Digital Markets Act
This legislative proposal [21] is important on its own as it can potentially reign in the so-called gatekeepers - the most influential internet platforms - into more transparency and accountability. We read it and we lay the basics out [22] for you: what the DMA, as proposed by the European Commission, regulates - and (equally as important) - what it doesn’t regulate.
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Also, the MEP Rapporteur team in the IMCO (Internal Market and Consumers Committee) has finally formed. If you want to tell them what you think about the DMA, they are: Andreas Schwabb (EPP, DE - at the helm); Evelyne Gebhardt (S&D, DE); Andrus Ansip (RE, EE); Virginie Joron (ID, FR), Martin Schirdewan (GUE, DE), Marcel Kolaja (Greens, CZ), and Adam Bielan (ECR, PL).
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E-Evidence
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The Regulation on European production and preservation orders for electronic evidence in criminal matters (E-Evidence) [31] aims to create clear rules on how a prosecutor in one Member State can request electronic evidence. One such use case would be requesting user data from a platform in another EU country during an investigation. We wrote about our main issues in the past. [32]
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We mainly worried about a new category - “access data” - which would allow prosecutors to demand information such as IP addresses, date and time of use, and the “interface” accessed by the user without judicial oversight. In the Wikipedia context this would mean being able to follow what someone has read.
The second question we have is whether the hosting country’s authority will have the right to intervene in some cases where fundamental rights of its citizens are concerned.
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After the European Parliament and the Council reached their negotiating positions last year the trilogue rounds (meetings between the two co-legislators) have now begun. Last week was the second trilogue. So far the good news is that both co-legislators and the Commission are in favour of dropping the “access data” category. However, in exceptional emergency situations prosecutors will be allowed to request data needed to identify persons quickly. Details important here.
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On the second main point, we are seeing that both European Parliament and Council are coming closer around some sort of “notification” regime for the hosting country’s authorities. The European Commission didn’t have anything in its proposal. The European Parliament wants to make sure citizens are (doubly) protected against prosecutorial misuse, having in mind that not all EU members have a great record on this. The Council mainly worries about simplicity and speed of procedures. Again, we will need to see a possible compromise, as details are key.
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Furthermore a Common EU Exchange System for such requests is discussed through which platforms would receive production orders. This would solve the issue of each platform knowing which the competent authority is in each Member State. There would also be an option for the platform to request reimbursement from national authorities for the costs incurred by such orders.
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The next trilogue will be on 20 May, still under the Portuguese Presidency. In the meantime there will be technical meetings (assistants, experts and advisors). Participants are expecting the talks to continue through the Slvoenian and French Presidencies, so until first half 2022.
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END
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[02]https://wikimedia.brussels/upside-down-is-all-content-terrorist-until-determined-otherwise/
[03]https://wikimedia.brussels/wp-content/uploads/2021/03/MEP_TERREG_Letter_EN.pdf
[12]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0361(COD)&l=en
[13]https://drive.google.com/file/d/1GSsmlIPF5BWwNuaw6_z0fWdRPCNpK9wQ/view?usp=sharing
[14]https://www.europarl.europa.eu/doceo/document/ITRE-PR-691139_EN.pdf
[21]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0842
[31]https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=&reference=2018/0108(COD)
[32]https://wikimedia.brussels/e-evidence-lets-keep-reader-data-well-protected/