The European Union’s expansive new rules to oversee the region’s digital economy have left the industry with much to chew on, but they are far from etched in stone yet.
The Digital Services Act and the Digital Markets Act aim to revamp the way Big Tech companies and digital services operate, from moderating illegal and harmful content to reining in competition oversteps.
In an industry with many billions at play, these two sets of legislation will go through various rounds of debates, lobbying efforts and tweaks.
Cecilia Bonefeld-Dahl, director-general of DigitalEurope, a trade association with members including Facebook and Google, said that it broadly supports the Digital Services Act but that the Digital Markets Act still needs honing.
“We think the (EU) Commission got the balance right on the DSA proposal. The DSA is extremely important for our industry, so we hope that this balance is preserved as it goes through the legislative process,” she told CNBC.
Industry, civil society groups, member states and lawmakers in the European Parliament are now all jockeying for position in having their say on the pieces of legislation before they are finalized.
The proposals as they stand could end up looking different by the time they are passed and all sides have argued their case. They could be strengthened in upcoming talks with member states and lawmakers, a normal process in the EU. But given how important the new rules are for the industry, many interest groups are likely to try to shape them.
The Digital Services Act’s remit is broad, including the online ad industry, how companies are expected to moderate their platforms for harmful and illegal content, and policing the sale of counterfeit goods online.
Karolina Iwańska, a legal and policy analyst at Polish digital rights group the Panoptykon Foundation, said that the DSA is still missing some heft when it comes to user tracking and targeting.
“There should be some clear red lines and limits as to what is allowed in this respect, particularly in terms of persistent monitoring of users’ behaviors for targeting content at them, and here I don’t mean only ads,” she told CNBC.
She said her organization is not opposed to some form of targeted content or advertising, but there needs to be firm and clear guardrails.
“We advocate that ads should be based on data directly expressed or provided by people. If I declare I am a woman living in Warsaw in this particular age, that should be the information that you could serve if you want to target an ad to me.”
Content moderation, a hot-button issue, will be cause of even further debate. This includes lingering questions over the distinction between illegal and harmful content and what will be expected of platforms in how they act.
Maria Luisa Stasi, a senior legal officer at Article 19, an NGO focused on freedom of expression rights, said that these distinctions are open to much interpretation.
“I think what we are mostly concerned of is how the notice and takedown procedures will be shaped,” she said.
The European Parliament is currently mulling over the Digital Services Act. Danish lawmaker Christel Schaldemose is the Parliament’s rapporteur for the legislation. She recently commented that the proposal needed strengthening to tackle counterfeit goods.
She told CNBC that she is assessing the European Commission’s proposal while preparing her own report to be submitted on May 28.
“After this, the deliberations and negotiations between the political groups in Parliament will begin. I expect them to continue throughout the fall,” she said.
The Digital Markets Act meanwhile has thrown up other debates. While DigitalEurope felt the DSA had a solid balance, Bonefeld-Dahl said that she believes the new rules that will govern market activity are at risk of being too broad.
“Whilst there are legitimate concerns about digital markets, we should avoid overly blunt instruments which may hinder innovation and market entry,” she said.
One of the key issues is the definition of so-called gatekeepers. These are the very large players that will likely encompass Google and Amazon, with vast user bases. The rules would require them to open the hood on their platforms for other smaller businesses to access data and introduce greater advertising transparency.
“It is important the DMA takes into account the specificities of particular business models and market conditions. The requirement of a fair hearing with legal due process and sufficient legal certainty must be adhered to across all of these new measures,” Bonefeld-Dahl said.
Article 19′s Luisa Stasi said that the definition of a gatekeeper cannot rely solely on how big a platform is but must also consider its influence regardless of size and how it approaches user privacy.
“The DMA is absolutely crucial for us as an instrument to get to a more decentralized and diverse environment for online, social media and communication channels in general,” she said.
“Those standards (for determining gatekeepers) might not be only economic. Those standards are not only the price of a service but also the quality of a service and the quality of a service might also include how privacy friendly it is,” she added.
The crafting of the EU’s new competition rules comes at a time of reckoning for Big Tech and the power and influence that these companies wield.
In the U.K., for example, the Competition and Markets Authority has established a unit within its ranks to investigate digital cases, which follows a number of major probes launched by the watchdog into Facebook, Uber and others.
