Making sure digital rules protect and benefit all Europeans – 4 key issues for the Spanish EU Presidency
Harmonised EU rules are important to businesses and consumers alike. That is why Europe needs to focus on the effective implementation and enforcement of the Digital Services Act (DSA), which started to apply to very large companies on 28 August. The EU should also make sure that new legislative proposals do not contradict the landmark DSA.
Europeans need to see the tangible results and benefits of these new digital content rules. This means that lawmakers should take enough time to see what works, and what doesn’t, within this new framework before adding new layers of legislation.
Indeed, it is important that Spain – during its current Presidency of the Council of the European Union – ensures that any new regulations stay in line with the DSA’s legislative framework. In this context, four key issues stand out in particular.
1. Protect the privacy and safety of users, and children in particular
Tackling child sexual abuse (CSA) is of paramount importance, and all digital service providers are committed to preventing and fighting such heinous crimes. At the same time, the proposed rules in the EU’s CSA Regulation that is currently being debated should strike a better balance between online safety and fundamental rights.
The co-legislators need to ensure the new CSA rules respect the EU’s ban on general monitoring and reject any form of mandatory and disproportionate privacy-invasive detection that would impact millions of EU citizens. They should also explicitly exclude any prohibition or weakening of encryption, including end-to-end encryption.
Moreover, the Council should provide an explicit legal basis for the prevention, detection, and reporting of child sexual abuse – enabling online service providers to perform voluntary detection. This would help the prosecution of crimes against children, while also staying in line with the broader legislative framework, and the Digital Services Act in particular.
2. Increase the transparency of political ads with clear responsibilities
Creating a modern EU-wide framework for more transparency in political advertising is necessary, although we should keep in mind that such advertisements play an important role in promoting the diversity of political opinions and citizen engagement in the electoral process.
In order to further increase transparency, lawmakers need to limit the scope of the proposed EU rules and narrow the definition of “political advertising” to only capture paid-for political messages. They should also make sure the new rules on political ad targeting and content amplification set appropriate transparency standards and give users control over the content they get to see. It is equally important that the political advertising legislation does not introduce any new concepts that conflict with the existing EU data protection framework or the DSA, as that would only lead to confusion.
3. Maintain a balanced relationship between media and online platforms
The tech industry supports the introduction of new rules to safeguard the independence and pluralism of Europe’s media, with a view to fostering a healthy and balanced information ecosystem. To achieve this delicate balance, the European Media Freedom Act should be improved and clarify how the proposed “special treatment” of media service providers would work in practice. Any changes transforming it into a media exemption should be avoided, as this would in fact lead to more harmful and infringing content – directly contradicting the DSA – rather than promoting media freedom.
Any special treatment of media content should therefore be strictly limited to legitimate actors and accompanied by robust safeguards against abuse by rogue actors who try to spread disinformation or illegal content. Only platforms carrying a significant amount of news information or media services should have to facilitate the self-declaration of media services providers, and not marketplaces for example. While the position of the Council provides safeguards on the restriction of content and the self-declaration of media, some loopholes remain and should be fixed during the interinstitutional negotiations.
4. Ensure the EU liability framework is fit for purpose
The European Commission has proposed an update of the EU product liability regime in order to better protect consumers in the digital era. However, the revision of the Product Liability Directive (PLD) introduces an easing of the burden of proof without proper safeguards for evidence disclosure. This would completely change the way the legal system works and risks exposing companies to so-called “fishing expeditions” or frivolous claims.
The revision also introduces a wider definition of the notion of “product” that includes software and AI applications, as well as an extended list of damages. This extension of scope disproportionately impacts the tech sector and disregards the functioning of the digital economy. A software bug cannot be regulated the same way as a wobbly coffee table for instance. Indeed, the changes brought about by the PLD’s revision risk hampering research and development, innovation, and ultimately Europe’s digitalisation – all to the detriment of consumers.If the revised PLD does not undergo any improvements, it would only increase insurance cost and product prices for Europeans, without providing any clear benefits in terms of consumer protection. That is why the Council should really take stakeholders’ feedback into account and make sure the PLD properly reflects the realities of the tech sector in the upcoming negotiations with the European Parliament.