The European Commission’s Communication on Online Platforms: Two Steps Forward, One Step Back
Tomorrow the European Commission is expected to announce a Communication on online platforms, in addition to legislation on audiovisual services and on geo-blocking. This topic has drawn a huge amount of interest from around Europe and the world. This is a story with a happy ending, or rather, a happy ending to the first chapter of the story, as the Commission is expected to announce that it will not introduce legislation applicable to all platforms.
As DisCo has argued before, platforms are many and various and include online newspaper, connected cars, e-commerce sites and search engines. The regulatory needs are different and in most cases existing rules on e-commerce, data protection and competition can handle any problems that might emerge. At least fourteen members states of the European Union agree with this approach as their joint letter this week showed.
However, the Commission is also expected to announce that it is working on sector specific legislation in fields where the arrival of platforms has shaken up the market. This is the right approach, but will these processes come to the right conclusion, thus reinforcing a Digital Single Market that makes market entry and cross border business easier?
One area the Commission is likely to legislate is in telecoms. There is an opportunity to remove sector specific rules for the service layer, i.e., making calls and sending messages given the vast range of options for consumers to communicate. General consumer contract law could deal with any problems, rather than a sector specific measure in most cases. It will be critical for the Commission to encourage the development and use of next generation communications services in Europe (think of the way that communication is built into services like Airbnb, Tinder or second hand listings sites) rather than introduce measures for online apps that serve no purpose or cannot be implemented.
Secondly, the Commission is expected to confirm it will not change the E-Commerce Directive and the successful principle that hosts are not liable when their users infringe rules. This is wise. However, the Commission has also been talking about the possibility of specific regulatory action to hand more cash from certain hosts to the music industry. If confirmed such an approach would push many sites that host copyright protected content outside the scope of the E-Commerce Directive. This would force open platforms to control what is uploaded to their platforms much more closely, or even to shut down. It could limit considerably what Internet users can do. It would be unlikely to achieve what some want: a transfer of money for online platforms to the music labels. In fact, it might reduce the monies that are currently shared.
We have seen initiatives like this before and they did not end well.
Thirdly, the legislative proposal on audiovisual media services is expected to bring video sharing platforms into the scope for the first time. To be more precise, such services may be expected to enter into co-regulatory processes to aid the protection of minors and to combat hate speech. These are both important areas of policy. However, the question remains whether these should be tackled via audio-visual rules rather than via the existing E-Commerce Directive rules. After all, Internet is not TV.
The Digital Single Market is the right strategy to restore growth to Europe, to aid the digitisation of industry and reinvigorate the single market. Over the next two years we will see whether the choices made will ensure we grab the prize, or whether it was simply Euro-speak.