SPECIAL! SPECIAL! The European Commission has published its long anticipated Digital Services Act and Digital Markets Act. A few very rough first notes on them and a few key other dossiers to keep you warm over the holidays.
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Digital Services Act: It revampts the responsibility framework for internet services. If you are a telecom or a hosting provider, not much will change. If you are an online platform you might have to revamp your content moderation practices on the service providers’ side at least. If you are a very large service (45 million users within the EU) you will have to be even more transparent than everyone else, to self-assess systemic risks regularly (e.g.: How prone is your service to be abused by disinformation networks during an election campaign?) and to conduct independent, external audits of how your content moderation practices.
We are still unpacking the text, but here our first key reactions:
We very much like the idea of safeguarding fundamental rights and freedom of speech even within online services.
Communities/community-driven moderation and platforms are not really thought of anywhere, which leads to a few risks.
In Article 12-2 we are worried that people claiming rights in bad faith might try to alter Wikipedia articles by going over a legal process supposed to force platform operators to defend fundamental rights. We will need a better safeguard here.
In Articles 14-19 (basically the content moderation systems) we need stronger safeguards and rights for communities and individual users ("counter-notices" within the Notice & Action system being one basic example).
You can join the fun by crunching the text yourself here: https://ec.europa.eu/info/sites/info/files/proposal_for_a_regulation_on_a_single_market_for_digital_services.pdf
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Digital Markets Act: This basically is a list of “dos and don’t” for very large platforms that have a so-called gatekeeper position on the internal market. To be part of that club you need to have a turnover of over 6.5 billion euro, so Wikimedia is out. The regulation will impose restrictions on bundling services, self-preferencing blocking others from accessing online marketplaces. Another goodie: No pre-installed apps that you can’t uninstall shall be allowed.
Here’s the proposal: https://ec.europa.eu/info/sites/info/files/proposal-regulation-single-market-digital-services-digital-services-act_en.pdf
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Data Governance Act: While we extensively covered this in past monitoring reports, we have now “caught” a new potential glitch by the European Commission in this proposal. They want to establish registered and voluntary “data sharing services” (Articles 9-13) in order to foster exchange of industrial data between companies. But the exception to who is covered is worded in a way that Wikidata and Europeana might have issues with it. Article 14 reads:
“This Chapter shall not apply to not-for-profit entities whose activities consist only in seeking to collect data for objectives of general interest, made available by natural or legal persons on the basis of data altruism.”
See full text of the regulation: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0767
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TERREG:
On December 10th a compromise was adopted on terrorist content regulation. It must have been a matter of not losing face for the German Presidency by passing on this hot potato into 2021 unresolved, that they agreed to some proposals that had not been seen as acceptable before. Here is a short summary of the most important points.
1. Exception for journalists, artistic and educational purposes
The doubtful legitimacy check of what is journalism, artistic expression or accepted research has been dropped. Article 1(2)(a) will exclude material disseminated for educational, journalistic, artistic or research purposes from the scope. Moreover, purposes of preventing or countering terrorism shall not be considered terrorist content including the content which represents an expression of polemic or controversial views in the course of public debate.
2. Definitions that on HSP and terrorist content
For the hosting service provider, those who enable users to share content to the public (potentially unlimited number of persons) are under the scope. As for terrorist content, it is now closer tied to the definition of terrorist offences from the Directive on combatting terrorism.
3. One hour rule
That one is still in. The rule has been softened a bit by introducing "justifiable technical and operational reasons" a platform may evoke if it cannot comply with the order on time.
4. Upload filters kind of out/in
We end up with a prohibition for the authorities to impose upload filters. HSPs can still use them voluntarily.
5. Competent authorities
The competent authorities will not be judicial or independent. There is, however, the following safeguard: "Competent authorities shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them pursuant to [this Regulation]"
6. Cross-border removal orders
The desired outcome on that topic has not been reached.
Currently we are awaiting for the final text and its formal adoption by the Council of the EU. Next up - a vote in the European Parliament, possibly already in January.
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E-Evidence: The regulation on electronic evidence and preservation orders was also covered extensively in past reports. The European Parliament has now agreed on a position and is moving to negotiate the final text with Council. From where we stand we got one fix - prosecutors won’t be able get data about which IP accessed with Wikipedia article without a judge’s stamp. But we also have one fail - the hosting Member States agency won’t have a veto right on production orders if fundamental rights are violated by the issuing prosecutor. Now the Parliament will need to defend its positive amendments to the end of the process.
Procedure file: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2018/0108(COD)&l=en