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.
—
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.
—
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.
—
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.
—
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.
—
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.
—
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.
—
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.
—
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.
—
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.
===
[1]
https://ec.europa.eu/eusurvey/runner/bd32f3a5-2d69-95dc-41b2-7066e31ca8e1#p…
[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
[4]
https://edri.org/wp-content/uploads/2023/04/Open-Letter-Council-Protection-…
[5]https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0731
[6]
https://edri.org/wp-content/uploads/2023/06/Joint-Civil-Society-Letter-on-d…
[7]https://www.senat.fr/dossier-legislatif/pjl22-593.html
[8]
https://drive.google.com/file/d/1wyKttShxuqTh4TboFCCD7Kjr1VGaw0Du/view?usp=…
[9]
https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-95351.…
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Wikimedia Europe ivzw