December Newsletter | Hope shines with DSA and DMA? Speed and integration required

Hope shines with DSA and DMA? Speed and integration required

The EU Commission has finally released its proposal to overhaul rules for the online world. In the last twenty years the e-Commerce framework with its liability exemptions laid the basis for some of the most powerful companies in today’s economy. Lack of compelling regulation also led to a ratchet of issues: Market dominance and its abuse, unfair competition, impunity regarding illegal content, hate speech or trolling and disinformation online The Commission understood that it was time to act and to act fast. Speed is of essence in the online economy.

The stakes are high. Imposing new rules on dominant online players triggers massive resistance as the current regime is quite comfortable for them. In anticipation of the challenges to come, online giants have substantially raised their advocacy spendings whilst other industries are downsizing. Platforms are now replicating the same dominance they achieved in the economy in the field of lobbying, with limited transparency (see below).

However, the proposed Digital Services Act (DSA) and Digital Markets Act (DMA) leave us in limbo. Rather than clarifying the rules , the proposals add an additional layer of complexity to an already complicated situation. DSA and DMA are complex pieces of draft legislation, introducing a multitude of new procedures, new categories of players and new administrative bodies.  Somehow one may already see the handwriting of the big platforms in these drafts.

The advocacy battle will be fierce. Compared to what lies before us the recent fights on data protection and copyright will appear like a walk in the park. Even if the texts are adopted during this legislative period,  implementing them promises to be challenging. And many legal terms will ultimately be challenged in Court. Before any of the possible substantial fines under DSA and DMA will be imposed it will take years and years.
Until then, left alone, the big dominant players would  have no reason to adapt to any new rules. There is a good  definition of ‘gatekeepers’ and a list of their ‘forbidden practices’, but markets  move too fast for the legislator: could they be discouraged now? The Commission should courageously use existing tools, especially under competition law, to tame excesses. Otherwise, the goal of the Commission to ensure a fair digital sector and a safe, predictable and trusted online environment will not be achieved.

Now, what practical next step? To get public support and act, the Commission should produce not just draft legislation, but a ‘chapeau document’, an overall strategy, bridging over institutional silos. This should build on the overall digital strategy and disinformation challenge, and connect DSA, DMA, existing competition law, plus the democracy and media action plans.

Marc Sundermann, Director at Europe’s MediaLab (Fondation EURACTIV)

THINK – Platforms’ lobbying against sovereign legislation & regulation

Think tanks & platforms ties: lack of transparency

Data provided by the EU transparency register are not sufficiently updated and detailed: Platforms and think tanks prefer to not to publicize their ties. Facebook in particular has worked with several think-tanks without disclosing it. Apple and Google which have also failed to fully reveal their affiliations, and Amazon only declared its links with CERRE after Lobbycontrol’s complaint to the Transparency Register Secretariat.

Giving members privileges in accessing high-level meetings and events, think tanks are giving big tech platforms an effective lobbying tool in exchange for a membership fee (Thinking allowed? How think tanks facilitate corporate lobbying (2016), by Corporate Europe Observatory). 

Google has invested millions in academic institutions across Europe, developing a network of friendly academics, think tanks, universities and organisations to support its business interests (Google’s Academic Influence in Europe (2018), by Campaign for Accountability). Google has paid for research papers and funded events to spread its views and gain consensus. Target countries in Europe have been France, Germany and the UK, where ‘’executives from Google’s lobbying operation have helped conceive research groups and covered most, or all, of their budgets for years after launch’’.

FRANCE vs GAFA: le bras de fer continue

• « L’absence de transparence des grands réseaux sociaux est une aberration démocratique », selon Cédric O (Les Echos). Il ajoute que la constitution d’acteurs aussi dominants dans l’univers numérique «pose de graves problèmes économiques et démocratiques».

• Inside Google’s Deal with the French Media (MondayNote): Google will give about €150 million to the French press over the next three years.

• “Interférence InnoCherche” : “Fin de la GlobalTech, Vive l’EuroTech !”: “Il faudrait donc que, d’ici 10 ans, on puisse reconstruire une technologie souveraine, sur des bases 100% européennes, avec à la fois une infrastructure mais aussi une gouvernance internet, s’inspirant de l’Estonie, basée sur les valeurs européennes de RGPD et non pas sur les valeurs américaines déduites du First Amendment.

Platforms’ lobbying expenditure increase

An analysis conducted this year by VoxEurop confirms that the collective lobbying expenditure of Big Tech Platforms has risen from 2.8 million in 2013 to 15.25 million in 2018 (+444%). Over the last years, Big tech platforms have increased their lobbying expenditure, even doubling it in the case of Facebook, according to data published on the EU transparency register and information gathered by LobbyFacts. Google, with a total of between 5,750,000€ and 5,999,999€ lobbying expenditure in the 2019 financial year, is the most powerful platform in Europe.

The number of meetings with the European Commission conducted by Platforms (Facebook, Google, Apple, Amazon) is 497 since 2014, against a total of 127 for media associations (ENPA, EMMA, EFJ, NME) since 2014.

Platforms are also hiring high level people from institutions and governments, who have the know-how and the insight knowledge to use for their interests (see this article from the Guardian).

Facing EU regulation: Platforms’ lobbying efforts at European level

• Commission vies to ‘put order into chaos’ with new digital crackdown (EURACTIV)

• EU warns that it may break up Big Tech companies (FT): “Big Tech companies that are fined three times within five years will be labelled as repeat offenders and the EU will move to structurally separate their businesses.”

• Big Tech Turns Its Lobbyists Loose on Europe, Alarming Regulators (NYT): The Silicon Valley is building a powerful influence industry in Brussels, which has “never seen this kind of money” spent this way.

• Bruxelles : bataille de lobbies autour des GAFA (Le Monde): “En réalité, le lobbying avance aussi à visage couvert”  indique la députée européenne S. Yon-Courtin, qui cite ces “centres académiques financés par les GAFA, qui colportent leurs arguments”.

• Face aux Gafa, l’Europe fait bloc (l’Opinion): “Une politique industrielle proactive nécessite une révision du droit de la concurrence à la fois sur les concentrations et les aides d’Etat. Or, ce sujet est bien moins consensuel, que ce soit à la Commission, entre Etats membres ou même entre économistes” pointe Isabelle Mejean de l’Ecole Polytechnique.

• Amazon sought to water down EU privacy rules, document shows (Politico): In the 2017 document, Amazon states: ‘”Our campaign has ensured that the ePrivacy proposal will not get broad support in the European Parliament. Our aim is to weaken the Parliament’s negotiation position with the Council, which is more sympathetic to industry concerns”.

• Le licenciement polémique de Timnit Gebru, qui travaillait chez Google sur les questions d’éthique liées à l’IA (Le Monde)

• EFJ welcomes EU Democracy Action Plan but calls for stronger regulation of tech giants: “While it is right to invest more in media literacy, more needs to be done to promote ethical and responsible journalism, in a context where technology giants are destroying the information market and flooding public debate with false information.”

Media ecosystem and EU’s strategic autonomy

• FEPS expert meeting with 24 key stakeholders (November 19th, 2020): public summary (pdf)

• Guillaume Klossa’s report on media sovereignty (2019)

• Jean-Claude Juncker: ‘Il faut armer médiatiquement l’Union européenne‘ (2017)

• EPSC presentation: Media4Democracy – Sound Platforms and independent media (2019)

• 2015 Opinion is still relevant: Journalists and publishers must unite to create a eurozone press

US and UK measures to address Big Tech’s dominance over the digital space

U.S. and States Say Facebook Illegally Crushed Competition (New York Times): Regulators are accusing the company of buying up rising rivals to cement its dominance over social media and calling for the deals to be unwound. According to US authorities, Facebook should break off Instagram and WhatsApp.
Christophe Leclercq’s reaction: “Selling off Instagram and WhatsApp would not solve all the issues. This will be a tough and long legal process (cf break up of AT&T). It is the same as for DSA: a slow and uncertain process, so let’s also use right away the existing tools: competition, action plans, indicators, NEWS bundle”.

What can Silicon Valley expect from Joe Biden? (FT): Biden’s administration won’t have sympathy for Silicon Valley’s tech giants. Regarding Section 230, the part of US law that shields social media companies from being sued over content posted on their sites by users, Joe Biden said that it should be revoked, and added: “ [Facebook] is propagating falsehoods they know to be false.” EU-US cooperation on Platform regulation with a Biden administration: check our previous newsletter (Christophe Leclercq’s comment: ‘’Platforms claim to support regulation, albeit on already regulated areas, chiefly illegal content, leaving fake news aside. And then, in the back and via multiple channels, they lobby against further regulation.”)

UK Government to Develop a Code of Conduct and Establish a Digital Markets Unit to Regulate Online Platforms (News Media Alliance): The code of conduct would be aimed at protecting competition online, with the Government’s response noting that the code should also include provisions governing the relationship between the online platforms and the news media.

DO – Stars4Media: innovation and skills for media

Stars4Media “second edition” will start in January 2021.
Check the Stars4Media handbook with tips and best practices developed during the first year of this training innovation project for the media! To contribute further ideas, discover the Stars4Media initiatives and innovative training, media professionals are invited to take part in the community: the Stars4Media LinkedIn Group!