Hi everyone!
Europe is hurtling towards a mass annual summer break in August, but before that everyone seems to be in a frenzy to get some progress done on their files. The European Commission is consulting on -a public “content moderation database”, France being France is trying to over-implement the DSA and pre-implement other digital files, while Germany is asking itself what to do with e-lending. Oh, yes, the Media Freedom Act is also moving forward. Can’t wait for the Sommerpause!
Dimi & Michele
=== DSA: Content Moderation Database ===
The DSA obliges online platforms to submit to the European Commission decisions to remove or disable access to information and decisions to suspend or terminate recipient’s accounts. These shall be submitted, with an explanation, to a publicly accessible and machine-readable database. This obligation was inspired by the Lumen Database that aggregates such information on a voluntary basis.
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The Commission has published the code and documentation (on GitHub) of its planned “DSA Transparency Database” and has opened a public consultation until 17 July to gather feedback. [1] The consultation poses questions on methods of submission and the precise information to be collected.
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Wikimedia Foundation is worried about how to submit the decisions it takes to this public database without sharing any personal data. Additionally, protecting users is a major priority and in some sensitive cases this could best be done by being nonspecific about the reasons for the decision. We will provide feedback.
=== Data Act ===
It’s a wrap! Well, a deal. As you might already know if you read this list regularly, the Data Act will give users the power to request and re-use data generated by products or services they use. In order to achieve this, the legislation limits the scope of the sui generis database right (SGDR) in Article 35, so it cannot be an obstacle to such re-use. This is a win, although we would like to see the entire SGDR reviewed and then reformed or removed. [2]
=== EMFA ===
The European Media Freedom Act (EMFA) aims at improving the functioning of the internal market for media services. [3] It specifically introduces safeguards for journalists and media providers, provisions for increasing regulatory cooperation and convergence in the media market (e.g. New Board for Media Services, former ERGA) as well as ensuring transparency in the allocation of economic resources (e.g. state advertising). The rationale is that by protecting the internal market for media services the EU fundamental values of media freedom and pluralism can thrive.
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The focus of our attention has been Article 17 of the proposal. Indeed, it contains a “media exemption”, introducing new obligations for providers of very large online platforms offering “online intermediation services”: more specifically, they will have the power to accept or refuse self-declarations of media providers as well as to decide whether an account or item can be restricted or deleted. Considering that the Wikimedia Foundation does not offer “online intermediation services” as defined in the P2B regulation (Regulation (EU) 2019/1150), such provision will not affect Wikimedia projects, such as Wikipedia.
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More recently, we co-signed an open letter 4[] addressed to the Council asking for a stronger protection of journalists and their sources against the deployment of spywares. Indeed, it is extremely important to support the call for a strong protection of freedom of expression given that it is the basis of Wikipedia.
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Currently, Council adopted (21st June 2023) its general approach and Parliament (CULT, IMCO & LIBE committees) is working on its position, which should be adopted after the summer (concerning the media exemption, Parliament looks more keen to introduce a stronger version of it). Trilogues are supposed to normally start at the end of the year, e.g. November 2023, under the Spanish Presidency. The goal is to have this new legislation in place before the 2024 elections, which will be held in June (therefore the Belgian Presidency will probably wrap the dossier up).
=== Political Advertising Regulation ===
The main goal of the Regulation on transparency and targeting of political advertising, which was put forward in November 2021 [5], is to ensure the proper functioning of the internal market for political advertising. The proposal was a political priority of the EU Commission and was inspired by the scandal of Cambridge Analytica. The proposal introduces, on the one hand, a set of obligations ensuring a higher level of transparency of advertising and related services and, on the other hand, specific rules on the possibility of using special categories of personal data when targeting and amplification techniques are used when offering this kind of services.
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Wikimedia is not directly affected by the new rules given that it does not offer political advertising services. Furthermore, its services are advertising free. Nevertheless, the definition of what constitutes a political advertising service is very broad, especially with regard to the “issue based advertising”. In light of that, we asked to introduce a carveout for “unremunerated services acting in a non-commercial purpose capacity”. In addition, we have signed an open letter [6] asking for the restriction of the scope of the definition of political advertising as well as the ban of the possible use of sensitive personal data with regard to targeting techniques.
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Currently, trilogue negotiations have been suspended sine die: Parliament and Council could not find an agreement on the use of sensitive personal data concerning targeting and ad delivery techniques. This is a very sensitive aspect since it calls into question the interplay with the DSA horizontal rules (especially Article 26) and positions fundamentally diverge (Council is more prone to allow the use of sensitive data in targeting techniques).
The Spanish Presidency should resume negotiations and seems more open to accept Parliament’s position. In any case, it seems very difficult that the regulation will be in force for the 2024 elections.
=== France’s Tech Bill Regulating The Online Environment ===
France is working on a tech bill to regulate the entire online environment. More precisely the de loi n° 593 visant à sécuriser et réguler l’espace numérique (SREN). [7] In theory this is a transposition of some of the DSA provisions, but France being France it is much more and way more French.
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In particular, the bill introduces new criminal sanctions. In practice, this will result in: 1) allowing courts to to impose up to six-month-long social media bans for users convicted of harassment, cyberbullying, apology of terrorism. This will oblige online projects to monitor the registrations of new accounts and block people who were previously banned from re-registering.
2) Introduction of a criminal sanction (1 year jail and a fine up to 4% of turnover) for online platforms that do not respect the order of the online regulatory authority (ARCOM) to remove pedopornographic content within 24 hours.
On the other hand, it confers to ARCOM additional powers to issue orders for content removal when a sanction is taken according to Article 215 TFEU, a provision introduced following the difficulties faced in blocking all RT and Sputnik links as well as mirrors.
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Wikimedia projects would be fully in scope, which is problematic with at least a few of the proposed obligations. Wikimédia France has commissioned a legal analysis and the Wikimedia Foundation has also checked the text. A position is being written and the rapporteur in the French National Assembly will be approached.
=== Germany’s E-Lending Consultation ===
Four German organisations, GFF, Wikimedia Deutschland, OKF Deutschland and AlgorithmWatch contributed to the German government consultation on e-lending. [8] They are criticising that e-lending in Germany is much harder than the lending of physical books and that libraries regularly are blocked from doing it, because publishers refuse to licence this activity.
=== Switzerland’s Press Publisher Right Proposal ===
The Swiss government is mulling over a press publisher's right and has shared a draft. [9]
One interesting thing about the Swiss approach is that they want to establish a universal right for everyone to share snippets of press articles. In a second step, they want to oblige only commercial online platforms that are used by more than 10% percent of the Swiss population to enter agreements with the press publishers’ collecting societies and pay licence fees.
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[1]https://ec.europa.eu/eusurvey/runner/bd32f3a5-2d69-95dc-41b2-7066e31ca8e1#page0
[2]https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3491
[3]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0457
[5]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0731
[7]https://www.senat.fr/dossier-legislatif/pjl22-593.html
[8]https://drive.google.com/file/d/1wyKttShxuqTh4TboFCCD7Kjr1VGaw0Du/view?usp=sharing
[9]https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-95351.html