The online regulation files are moving forward at light-speed by Brussels standards. Proposed December last year, the Council has now wrapped up its position on both files, while the Parliament has its position on the Digital Markets Act. On the Digital Services Act we expect the lead committee to come to an agreement before the Christmas break. This way the final, inter-institutional negotiations can start very early 2022. Also, the Data Governance Act is the first digital file to be finalised during the current legislative period.
Anna & Dimi
This and previous reports on Meta-Wiki: https://meta.wikimedia.org/wiki/EU_policy/Monitor
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Digital Services Act (DSA)
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In the Council, Member States agreed on a negotiating position. Expectations were that the French Presidency would have to wrap it up in January, but Slovenia actually managed to pull everyone together. From our perspective we can welcome a “fix” and we helped avoid several pitfalls.
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The fix is the language surrounding “actual knowledge”. Initially the text sounded like any notice a service provider receives would lead to an obligation to act and remove content. The agreed upon version of Article 14.3 is very clear that only some notices point to illegal content and gives the provider space to assess. Another argument was around whether there should be fixed deadlines for content removal. An interim version of the DSA text suggested either 24h and 48h. We, and many others, made the rounds arguing against it. In the end, this was dropped, the most convincing argument for Member States being that this regulation is horizontal, covering many types of content. It seemed to lawmakers that a universal deadline can’t be appropriate for everything from Gucci handbags, over sports live streams and music videos to holiday photos. Wikipedia is likely to be categorised as a Very Large Online Platform (VLOP) under this new law. This will come with new transparency, risk assessment and reporting duties, some of which we already cover. As Wikimedia projects don’t run advertising, many VLOP obligations won’t apply. We discussed whether we should ask for a carve-out, but strategically decided that we want to demonstrate that we can take on responsibility and be open about analysing our challenges and risks. This contrasts well against the resistance coming from most for-profit platforms. Full negotiated text: [1]
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Member States’ positions on the agreed negotiating position indicate that quite a number of countries have an appetite to re-open some parts down the line. Such statements are common. They indicate priorities, but as there is already an agreed text, they often remain “for the record”. In this case Germany and Denmark say they want stronger rules for marketplaces and physical goods. Something that might come, as the EP rapporteur Schaldemose also looks in this direction. Italy and Luxembourg indicated that they are open to limit targeted advertising, also something still discussed in Parliament. France reiterated that it wants the European Commission to be responsible for the enforcement against VLOPs. Hungary and Poland want each national regular to have powers over all VLOPs.
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In the European Parliament, negotiations in the Internal Market and Consumer Protection Committee (IMCO) are still ongoing, with large parts of the file already agreed upon. We are expecting the position to be adopted in committee in December and in plenary in January. Similar to the Council, the European Parliament has also fixed the “actual knowledge” language in Article 14.3. Several attempts at fixed removal deadlines and stay-down obligations have also been fended off. The EP will introduce some sort of waiver for some requirements for some non-for profits (but only covering small platforms) and some limitations on targeted advertising. Details depend on the final round of compromises between MEPs. A clearer language distinguishing between rules made by the service provider and rules made by the community, somenthing we have advocated for, is part of one of the compromise amednments and likely to be adopted at this point. [2]
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Digital Markets Act (DMA)
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Achievement unlocked! The DMA went through the Council of the EU and the IMCO Committee, ready for the intern-institutional negotiations a.k.a. trilogues. The parliament version is still pending a plenary vote on December 16.
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The debate during the trilogues will centre on a fundamental question: does Europe want to seriously target big tech and only big tech, or do we prefer targeting more platforms with fewer obligations? Since both positions have strong support, it may take months to agree which approach is the winning one. We have a detailed scoop on what are the points of divergence and where there will be little discussion in our blog. [3]
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Data Governance Act (DGA)
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Lawmakers from the Council and the Parliament reached an agreement on the DGA yesterday. The DGA will create data clearinghouses to incentivise companies sharing data among each other on a neutral space that belongs to all. These will essentially be a new category of platforms called “providers of data intermediation services”, which willl need to be registered and come with a set of obligations. Unlike the Commission proposals, services like Europeana and Wikidata are not in the scope in this final version. One positive win is that public sector data re-use will become a little bit easier, as the regulations prohibits public sector bodies from using the sui generis database right to hinder re-use. The GDPR remained untouched, which was an issue of many digital rights groups. Finally, there will be a volutnary certification and logo - “data altruism organisation recognised by the EU”, available to services that gather data for the public interest and respect all of the EU’s data rules. The final compromises can be seen here: [4]
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Transposition of Copyright Directive
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In France a new ordinance transposing the copyright directive was presented to the Council of Ministers by the Minister of Culture Roselyne Bachelot. The text implements exceptions for data mining, the use of protected works in the context of digital and cross-border educational activities and preservation of cultural heritage into French law. It only takes the bare minimum of the European law on board. The educational exception only covers parts of works and completely carves out works designed for educational purposes and musical scores, which might actually go against the directive and be a reason for litigation. France also “skips” the transposition of Article 14 a.k.a. “public domain safeguard”, which might also be incompatible with EU law. [5][6]
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Spain: The government also wanted to implement the copyright directive by Royal Decree, thus bypassing the parliamentary process. Wikimedia Spain, Creative Commons Spain and partners are calling for a thorough parliamentary deliberation: https://demud.wikimedia.es/
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wikimedia.brussels
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Our November blog posts for you:
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e-Privacy: our quick fix to help nonprofits and protect consent https://wikimedia.brussels/e-privacy-our-quick-fix-to-help-nonprofits-and-protect-consent/ - ePrivacy regulation will be another pillar, next to the GDPR, or sustainable privacy practices online. It will also, potentially, make the lives of nonprofits harder and Anna proposes how to avoid this unnecessary pitfall. -
Editorial: The DSA debate after Haugen and before the trilogues https://wikimedia.brussels/editorial-the-dsa-debate-after-haugen-and-before-the-trilogues/ - the recent Facebook (or shall we say “Meta”?) whistleblower was all the rage in town in November. In his editorial, Dimi proposes an outlook on the DSA taking on some of Ms Haugen’s points -
DMA votes: IMCO vs. Council, users vs. Member States https://wikimedia.brussels/dma-votes-imco-vs-council-users-vs-member-states/ - DMA has now a Council of the EU version and the IMCO version that goes under a Plenary vote in December. Anna looked into differences and similarities to make some predictions for the 2022 trilogues.
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[1] https://drive.google.com/file/d/1R3u5eg3PfPs_tCeD9rFp-UDUY3_gHD4z/view?usp=s...
[2] https://drive.google.com/file/d/11KnGAAExje1rTNPlgC2u8_nKVPUMpBVG/view?usp=s...
[3] https://wikimedia.brussels/dma-votes-imco-vs-council-users-vs-member-states/
[04] https://drive.google.com/file/d/1RSaPMtQhExzQW6L0jHdLtfCXXV1j8OQC/view?usp=s...
[5]https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044362034
[6]https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044362026
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