The new EU digital rulebook sets out unprecedented standards on the accountability of online companies, within an open and competitive digital market.
On Tuesday, Parliament held the final vote on the new Digital Services Act (DSA) and Digital Markets Act (DMA), following a deal reached between Parliament and Co uncil on 23 April and 24 March respectively. The two bills aim to address the societal and economic effects of the tech industry by setting clear standards for how they operate and provide services in the EU, in line with the EU’s fundamental rights and values.
The Digital Services Act was adopted with 539 votes in favour, 54 votes against and 30 abstentions. The Digital Markets Act – with 588 in favour, 11 votes against and 31 abstentions.
What is illegal offline, should be illegal online
The Digital Services Act (DSA) sets clear obligations for digital service providers, such as social media or marketplaces, to tackle the spread of illegal content, online disinformation and other societal risks. These requirements are proportionate to the size and risks platforms pose to society.
The new obligations include:
- New measures to counter illegal content onlineand obligations for platforms to react quickly, while respecting fundamental rights, including the freedom of expression and data protection;
- Strengthened traceability and checks on traders in online marketplaces to ensure products and services are safe; including efforts to perform random checks on whether illegal content resurfaces;
- Increased transparency and accountability of platforms, for example by providing clear information on content moderation or the use of algorithms for recommending content (so-called recommender systems); users will be able to challenge content moderation decisions;
- Bans on misleading practices and certain types of targeted advertising, such as those targeting children and ads based on sensitive data. The so-called “dark patterns” and misleading practices aimed at manipulating users’ choices will also be prohibited.
Very large online platforms and search engines (with 45 million or more monthly users), which present the highest risk, will have to comply with stricter obligations, enforced by the Commission. These include preventing systemic risks (such as the dissemination of illegal content, adverse effects on fundamental rights, on electoral processes and on gender-based violence or mental health) and being subject to independent audits. These platforms will also have to provide users with the choice to not receive recommendations based on profiling. They will also have to facilitateaccess to their data and algorithmsto authorities and vetted researchers.
A list of “do’s” and “don’ts” for gatekeepers
The Digital Markets Act (DMA) sets obligations for large online platforms acting as “gatekeepers” (platforms whose dominant online position make them hard for consumers to avoid) on the digital market to ensure a fairer business environment and more services for consumers.
To prevent unfair business practices, those designated as gatekeepers will have to:
- allow third parties to inter-operate with their own services, meaning that smaller platforms will be able to request that dominant messaging platforms enable their users to exchange messages, send voice messages or files across messaging apps. This will give users greater choice and avoid the so-called “lock-in” effect where they are restricted to one app or platform;
- allow business users to access the data they generate in the gatekeeper’s platform, to promote their own offers and conclude contracts with their customers outside the gatekeeper’s platforms.
Gatekeepers can no longer:
- Rank their own services or products more favourably (self-preferencing) than other third parties on their platforms;
- Prevent users from easily un-installing any pre-loaded software or apps, or using third-party applications and app stores;
- Process users’ personal data for targeted advertising, unless consent is explicitly granted.
Sanctions
To ensure that the new rules on the DMA are properly implemented and in line with the dynamic digital sector, the Commission can carry out market investigations. If a gatekeeper does not comply with the rules, the Commission can impose fines of up to 10% of its total worldwide turnover in the preceding financial year, or up to 20% in case of repeated non-compliance.
Quotes
During the debate Christel Schaldemose (S&D, DK), rapporteur for the Digital Services Act said: “For too long tech giants have benefited from an absence of rules. The digital world has developed into a Wild West, with the biggest and strongest setting the rules. But there is a new sheriff in town – the DSA. Now rules and rights will be strengthened. We are opening up the black box of algorithms so that we can have a proper look at the moneymaking machines behind these social platforms.”
Andreas Schwab (EPP, DE), rapporteur for the Digital Markets Act said : “We no longer accept the “survival of the financially strongest”. The purpose of the digital single market is that Europe gets the best companies and not just the biggest. This is why we need to focus on the legislation’s implementation. We need proper supervision to make sure that the regulatory dialogue works. It is only once we have a dialogue of equals that we will be able to get the respect the EU deserves; and this, we owe to our citizens and businesses”.
Next steps
Once formally adopted by the Council in July (DMA) and September (DSA), both acts will be published in the EU Official Journal and enter into force twenty days after publication.
The DSA will be directly applicable across the EU and will apply fifteen months or from 1 January 2024 (whichever comes later) after the entry into force. As regards the obligations for very large online platforms and very large online search engines, the DSA will apply earlier – four months after they have been designated as such by the Commission.
The DMA will start to apply six months following its entry into force. The gatekeepers will have a maximum of six months after they have been designated to comply with the new obligations.
Further information, reactions and positions for subscribers only:
Zur heutigen Annahme des Gesetzes über Digitale Märkte (DMA) und des Gesetzes über Digitale Dienste (DSA) erklärt Andreas Schwab (CDU), Berichterstatter des Europäischen Parlaments für den DMA:
„Das Gesetz über digitale Märkte (DMA) schiebt den Geschäftspraktiken der großen Digitalunternehmen einen Riegel vor. Der DMA setzt die Grundsätze der sozialen Marktwirtschaft online durch. Damit sorgen wir für offene Märkte und stärken die Wahlfreiheit für Verbraucher. Mit dem DMA beendet die EU das Katz-und-Maus-Spiel, in welchem die Wettbewerbsbehörden den Digitalriesen in langwierigen Verfahren hinterhergehinkt sind. Mit der Umkehr der Beweislast werden die Unternehmen künftig nachweisen müssen, dass sie sich an die DMA-Regeln halten und fairen Wettbewerb auf ihren Plattformen zulassen.
Zusammen mit dem Gesetz über digitale Dienste (DSA), das quasi-rechtsfreie Räume im Internet schließt, schafft der DMA eine Rechtslage, in der Plattformen zukünftig für illegale Inhalte und Verhaltensweisen geradestehen müssen, auch wenn z.B. Produkte dort von Dritten angeboten werden.
Mit dem Gesetzespaket hat das Europäische Parlament eine neue Ära der Tech-Regulierung eingeleitet. Der Grundsatz lautet: Was in der analogen Welt verboten ist, kann auch in der digitalen Welt nicht erlaubt sein.“
Hintergrund:
DMA befasst sich mit der Marktmacht von großen Digitalunternehmen und Marktstrukturen in Plattformmärkten. Damit werden nach zahllosen kartellrechtlichen Verfahren Regeln im Digitalbereich festgelegt und die europäische Plattformökonomie neu geordnet. Das Gesetz über Digitale Dienste (DSA) regelt die Verantwortung und Haftung von Online-Vermittlern wie Amazon oder TikTok für illegale Inhalte und Produkte. Das deutsche Netzwerkdurchsetzungsgesetz (NetzDG) wird dadurch größtenteils in EU-Recht überführt.
Quelle – CDU via e-Mail
Stricter rules for big tech and more rights for consumers in digital, thanks to the S&Ds
Thanks to the S&Ds, the EU will finally have adequate and up to date rules to deal with the realities of digital markets and services. The S&D Group voted in favour of political agreements on the Digital Markets Act (DMA) and Digital Services Act (DSA) in today’s plenary and thus replaced the more than 20 years old legislation currently in place. Among the S&D Group’s greatest achievements are the ban of targeted online advertising on minors and interoperability of messenger services without the consumer being forced to download all messenger applications on his phone. These deals have been reached after intensive negotiations between the European Parliament and the member states in the Council of the EU. The Council has already adopted them a couple of weeks ago and it’s now the turn of the members of the European Parliament. As a result of the successful vote today, we will have the new EU legislation in the world of digital already by the end of this year.
Christel Schaldemose, S&D MEP and EP negotiator on the Digital Services Act (DSA), said:
“We want to feel safe online, just like we want to feel safe when we are offline, on the street or at any public place. This is why my group and I spared no efforts to achieve better protection for consumers, including for the most vulnerable among us. This goes far beyond the ban of online advertising on minors and dark patterns. We included measures to tackle the very serious problem of cyber violence, like revenge porn or cyber bullying. We filled a serious gap in the EU legislation and opened the black box of algorithms for very large online platforms and search engines. From now on, they will have to assess any negative effects on democracy, the protection of public health, as well as behavioural addictions or other serious negative consequences to the users and societies.”
René Repasi, S&D MEP and negotiator on the Digital Markets Act (DMA), said:
“We had to put an end to the fact that big tech companies control access to a market that they dominate and for which they write their own rules. This required us to put the end user back into the driver’s seat when controlling what happens with his/her data. A major achievement in the DMA that my group and I are very proud of is therefore the interoperability obligation for messenger services. This means that the DMA makes it possible for users to chat using Viber with contacts on Whatsapp or Facebook Messenger without the need to install all three apps on their phones and then accept all their unfriendly privacy general conditions. We also prevent ‘dark patterns’ (a behaviour also known as ‘cookies hell’) where you are almost forced to accept selling out your personal data if you only want to continue browsing, whereas the option of refusing to give your consent is not as visible as the option of acceptance. This will considerably improve our privacy in online markets thanks to the new provisions in the DMA. Moreover, the new rules had to be tough in terms of enforcement. Instead of only relying on fines, the DMA gives the Commission, in the event of a continuous disregard of the DMA obligations, the possibility to prohibit so-called ‘killer acquisitions’ (buying innovative uprising competitors) and to even break up gatekeepers. These are painful sanctions that go beyond anything that we currently have in EU law in terms of sanctions, and will change the behaviour of gatekeepers.”
Source – S&D via email
MEP Bielan (ECR): DSA and DMA set global standards for regulating online platforms
According to ECR shadow rapporteur Adam Bielan, the Digital Services Act (DSA) and the Digital Markets Act (DMA) represent measures that will not only defend Europeans’ fundamental online rights, but also set global standards for regulating online platforms, cloud services and search engines in the future. “Rapidly evolving digital technologies are changing the way EU citizens and businesses use the internet. This requires an update of the rights and obligations for all digital players, from markets and service providers to users and customers. But such changes could not take place at the cost of freedom of expression, which was always our priority”, said Bielan after the adoption of the reports today in Strasbourg.
Mr Bielan continued:
“The Digital Markets Act is a step forward and promotes more competition and fairness in markets that are currently dominated by large platforms. My priority now is turning the theory into action, ensuring that the Commission uses its powers to help small businesses and equip them with the skills and capabilities needed to capitalise on those opportunities, such as better access to data.
“With the Digital Services Act, we have achieved our goal. The online environment will now become much more transparent and users will be equipped with the tools they need to challenge any erroneous decisions that platforms might make, specifically with regard to the pulling-down of content.”
Source – ECR via email
European press publishers welcome the adoption of the Digital Markets Act (DMA) but call for robust and swift enforcement
European press publishers represented by the European Magazine Media Association (EMMA) and the European Newspaper Publishers’ Association (ENPA) welcome today’s adoption of the Digital Markets Act in the European Parliament. The newly adopted obligations of fair and non-discriminatory access to the services of the gatekeeper’s search engines and social media and AppStores will help ascertain the unhindered access of the free press to the digital sphere. European press publishers reiterate the importance of a solid enforcement framework in establishing a successful and ambitious DMA.
“The European press publishers are grateful for the support of the European Parliament in its endeavour to subject social networks as well as search engines to the new Article 6.1.k, which establishes fair and non-discriminatory access conditions in the DMA. Enforcement is next, which is why we call on the European Commission to act with expeditiousness and courage. We likewise call on the European institutions to monitor the conduct of the gatekeepers in view of expanding the scope of the obligation to other core platforms, as fairness and non-discrimination should prevail as a guiding principle in a rapidly-evolving digital economy.”, said Ilias Konteas, Executive Director of EMMA and ENPA.
EMMA and ENPA regret that the adopted Digital Services Act (DSA) will weaken freedom of the press online
European press publishers represented by the European Magazine Media Association (EMMA) and the European Newspaper Publishers’ Association (ENPA) are concerned that the lack of a robust fundamental rights safeguard in the Digital Services Act adopted today by the European Parliament will have a worrisome impact on press freedom in an increasingly digital world. During the legislative process, we have repeatedly reiterated the need for the legal content of the free press to be protected against the arbitrary interference of the very large online platforms. Although the text attempted a reference to freedom of the press, this safeguard is insufficient.
The DSA not only obliges large online platforms to delete illegal content, yet also empowers said platforms to delete legal content on the basis of their own terms and conditions or codes of conducts, which often go way beyond what the law foresees. With the Digital Services Act (DSA), we regret that the EU missed a crucial opportunity to secure our fundamental rights and values in the digital realm. To ensure that future generations enjoy the same freedoms online that previous generations fought for offline, the DSA should have provided the opportunity to not only establish that what is illegal offline must be illegal online, but also that what is legal offline, must be legal online.
“The European press publishers gravely worry that the limits of freedom of expression will be defined by the terms and conditions of a few powerful digital behemoths, and no longer by the law. This is a worrying trend, notably because an increasing number of readers, young readers in particular, are exposed to our publications via the social media. Press freedom is non-negotiable both online and offline. We call on the legislators to rectify this oversight in the next review of the text.”, said Ilias Konteas, Executive Director of EMMA & ENPA.
ACT: TV & VoD Statement following DMA & DSA adoption
BRUSSELS, 5 JULY. TV & VoD providers welcome the adoption of the Digital Services Act package. Both the Digital Services Act (‘DSA’) and the Digital Markets Act (‘DMA) should shape the European online environment and deliver contestability, trust and accountability to the benefit of European citizens and businesses. Whilst the intentions of the European legislator is clear, these two legislative instruments set the stage for a better regulated online environment, they cannot be the full and definitive answer to all issues online.
The Digital Markets Act can become a real solution for genuine business problems posed by a handful of gatekeepers. As sole enforcers of the DMA, the European Commission should ensure that only genuine gatekeepers will be designated as such and that the latter effectively comply with the obligations foreseen in the regulation without undue delay. We rely on the European Commission to ensure timely application and remain at its disposal for any information they may need during the enforcement phase.
The adopted Digital Services Act is vastly better than the initial proposal, notably as regards harmonisation for notice and action processes, the scope of trusted flaggers and ensuring that online intermediaries – including very large online platforms and very large search engines – take responsibility for harmful and/or illegal content they host. Similarly, algorithmic transparency and the right to compensation can incentivise intermediaries to respect their due diligence obligations if properly enforced. However, some notable gaps remain such as developing better Know Your Business Customer rules for online platforms providing digital services as well as strong subsidiarity provisions which give intermediaries the opportunity to escape their obligations.
We remain faithful that the European Commission will take the next natural step towards protecting European content, by proposing legal instrument that addresses the stringent issue of piracy of live content and which builds on existing concepts of the DSA. Only through a legislative proposal that ensures immediate take down of time sensitive content can we truly say that “what is illegal online, is illegal offline”.
“The adoption of the Digital Services Package is the beginning of the end for impunity in the digital sphere. It is however only the end of the beginning of a new wave of regulation to ensure big tech complies with the rules all other economic actors have always been subject to. We look forward to a host of new proposals to effectively curtail the abuses taking place in the digital sphere, notably the piracy of live content and the spread and ongoing monetization of disinformation. The job ahead is still massive in terms of enforcement and complimentary legislation.”
Source – ACT via email
Business supports EU’s green light for competitive and safer digital sector
(Brussels, 5 July 2022)
Today the European Parliament made its final vote on the Digital Services Act and the Digital Markets Act. While the DSA aims to harmonise rules to create a safer, more predictable and trusted online environment, the DMA seeks to promote competition in the digital sector by curbing the market power and unfair practices of large digital platforms acting as “gatekeepers”.
BusinessEurope Director General Markus J. Beyrer said:
“We’ve supported the intentions of both the DMA and the DSA, and the EU has made a bold step towards fair competition and more safety in the digital sector. However, the essential challenge now is enforcement and actual impact of these pieces of law. While during the negotiations the spotlight was on the big tech, this package affects the digital economy across the board. Competitiveness of our digital players is at stake. Therefore, ensuring compliance must go hand in hand with the needs and the opportunities that lie ahead for smaller businesses, so that they become the digital leaders of the next decades.”