Digital Services Act: European Commission has opened landmark consultations on future regulation for digital platforms

By Francine Cunningham

06-2020

As regulatory pressure mounts on online platforms on both sides of the Atlantic, the European Commission is embarking on what is expected to be the most significant intervention in the digital market since the adoption of the e-Commerce Directive in 2000.  

On 2 June, the Commission launched a wide-ranging public consultation on its forthcoming Digital Services Act (DSA), which will propose new rules for companies operating online services. 

According to the Commission, the DSA aims to reinforce the EU Single Market and help provide smaller businesses with legal clarity and the level playing field they need. The forthcoming Act is one of the flagship projects of the Commission’s plan to create “A Europe fit for the Digital Age.” However, in updating certain aspects of the Internal Market framework for online services, this initiative will confront highly sensitive issues such as potential changes to the protection from liability afforded to hosting service providers.

Internal Market Commissioner, Thierry Breton, said in a statement: “Online platforms have taken a central role in our life, our economy and our democracy. With such a role comes greater responsibility, but this can happen only against the backdrop of a modern rulebook for digital services.” 

As part of its main consultation, the Commission is seeking input from relevant companies, other stakeholders and individuals on six specific areas: 

  • Keeping users safer online, including a request for data regarding illegal activities online such as dangerous and counterfeit products sold online, illegal hate speech, disinformation and misleading advertising, among other issues;
  • Reviewing the liability regime in the e-Commerce Directive with regard to digital services, with a particular focus on whether changes are needed for certain intermediaries such as social media, search engines, online market places and cloud storage providers;
  • Issues associated with the “gatekeeper” role of digital platforms, including information regarding any problems encountered by other players in the digital market and an evaluation of the concepts of “gatekeeper power” and “market power”;
  • Transparency around online advertising and smart contracts and other emerging issues and opportunities, including transparency issues;
  • The situation of platform workers, including health and safety considerations and other issues related to the businesses such as ride-hailing mobility services, food delivery and domestic work platforms;
  • What governance structure may be required to complete the single market for digital services and how regulators could work more effectively.

This main consultation is open for responses until 8 September 2020.

Additionally, the Commission is requesting feedback on Digital Services Act roadmaps outlining various policy options, including a roadmap on ex-ante regulatory instruments for very large platforms and one on the Internal Market and clarifying the responsibilities of online platforms. These roadmap consultations are open until 30 June.

In a sign that the Commission’s digital and competition services under the oversight of Vice-President Margrethe Vestager are working in tandem, the EU’s executive body is also seeking stakeholder views on a new competition tool in order to make competition rules fit for the digital age.

Bird & Bird’s lawyers and Regulatory & Public Affairs team are ready to support companies and organisations in preparing their submissions to the consultations.

For further information contact Francine Cunningham.

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