The Commission has now officially published its thinking and proposed approaches ("roadmaps" or "inception impact assessment" in EU jargon) on the three issues that are going to be tackled under the wider DSA package:
- the "gatekeeper law", i.e. an ex ante regulatory instrument for "very large online platforms" - a combination of digital legislation and competition law, on the basis of the "fairness and transparency" legislation (the platform-to-business Regulation) that will apply as from July 2020;
- the new framework for platforms' responsibilities that is designed to replace the ECD safe harbour; and
- a new competition law tool, focusing on competition law enforcement.
In short, some of the proposed policy options for regulation seem to be bluntly interventionist, seeking to gain access and control Big Tech's commercial practices, including decision-making on content, advertising etc, while allowing room for significant supervision or control by public authorities. Practical realities and nuances in providing services to users seem to have been ignored.
The Commission projects the harmonisation narrative as justification for the initiatives, i.e. the creation of a so called "internal market" for digital services. This is an angle we’ve seen in most - if not all- proposals coming out of the DSM to justify EU intervention.
The Commission justifies its proposals by expressly considering platforms as the public sphere: "The relative scale and impact of these issues is particularly important where the most prominent online platforms structure at scale information flows online, having become de facto ‘public spaces’ in the online world". That is an extremely troubling statement and is not supported by the law (indeed as many US courts have found in no uncertain terms).
(with Aliki Benmayor)
A few very large online platforms represent the largest share of the digital economy. Their role as gatekeepers, their economic power and control over whole platform ecosystems are making it essentially impossible for existing or new market operators to contest their positions. This initiative sets out options for ex ante rules to ensure that markets characterised by such platforms, remain fair and contestable.