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5 THINGS TO WATCH IN PLATFORM POLICY

After concentrating nearly all its efforts on tackling the health and economic consequences of the Covid-19 pandemic in the first half of 2020, Ursula von der Leyen’s Commission now braces itself for the second half of the year with regulation of the platform economy high up on its list of priorities.

Below are 5 changes we can expect before the end of the year.

  1. Commission to adopt ranking transparency guidelines as a follow up to the Platform-to-Business Regulation

The Platform-to-Business (P2B) Regulation, which aims to ensure further transparency and fairness in trading practices between platforms and their business users, entered into application in early July of this year. The regulation includes, among other things, obligations on platforms to be transparent about the way their ranking works. The Regulation requires disclosure of the ‘main’ parameters underlying ranking and the reasons for their relative importance. The guidelines should provide important detail on how that should work in practice. The Commission had originally hoped to publish those guidelines by the end of July but will now likely do so in the course of September.

  1. Reform of E-Commerce Directive will look to update liability rules while so-called ‘gatekeeper’ platforms are likely to be subject to new restrictions designed to increase contestability

The Digital Services Act (DSA) package due to be presented by the Commission in December 2020 is the most far-reaching reform of platform regulation in two decades. It will include a revision of the intermediary liability rules set out in the E-Commerce Directive, adopted in 2000 when the Internet was still in its infancy. Expect platforms to fight hard to preserve their limited liability regime and rights holders to firmly advocate for increasing obligations on platforms in relation to illegal content online. The package will also include rules dealing with online safety or advertising.

In addition, the Commission is mulling over new restrictions on large online platforms acting as so-called “gatekeepers” in digital markets. The Commission is looking at various options including a blacklist of prohibited trading practices applying to large platforms with a view to ensuring better contestability of digital markets, or a case-by-case regulatory tool with tailored remedies similar to the existing regulatory framework for telecoms. Exactly how to define a ‘gatekeeper platform’ will be hotly debated.  A public consultation on the DSA package is ongoing and running until 8 September.

  1. New competition tool seeks to intervene earlier against structural competition problems

A new competition tool to address structural risks (e.g. high market concentration, high barriers to entry, consumer lock in, dominance of data, etc.) for competition, allowing it to intervene where markets are close to tipping, is also under consideration as part of the DSA package.  This would represent a paradigm shift in the way DG COMP approaches competition enforcement. It would empower the Commission to impose behavioural and structural remedies on companies, both dominant and non-dominant, operating on digital and other markets. An important novelty would be that the adoption of such remedies would not be made conditional on a finding of infringement of EU competition rules, nor would any fines be imposed on companies. A public consultation on this proposal is currently open and closes on 8 September alongside the DSA consultation.

  1. Trilogues on terrorist content regulation are about to resume although an agreement remains out of reach in the near term

Talks between EU institutions to hammer out a political agreement on the draft terrorist content regulation unveiled by the Commission in September 2017 have been put on hold since the Covid-19 pandemic hit the European continent. This regulation could potentially set a precedent in platform regulation by mandating platforms to remove flagged terrorist material within ‘one hour’ and to take pro-active measures, such as the use of upload filters, to prevent the appearance of terrorist content on their services. The Commission and the Council both push for a mandated use of upload filters, whereas the European Parliament is opposed to their use based on warranted fundamental rights concerns about the risk of over-removal of legal content. The German Presidency wishes to resume negotiations as soon as possible but, even if they do, strong divergences between EU institutions persist making the prospect of reaching an agreement on this file before the end of the year rather unlikely.

  1. European Democracy Action Plan to crack down on disinformation online

In recent years, there have been growing concerns in Europe about the corrosive impact of online disinformation on democracy, trust in traditional media and faith in public institutions, in particular during the campaign for Brexit and the last European elections. These concerns have been heightened during the Covid-19 crisis, while the yet voluntary Code of Conduct on Disinformation was heavily criticized for lacking teeth. The ‘European Democracy Action Plan’, due to be published by the Commission at the end of the year, is likely to reinforce measures to curb this phenomenon. A public consultation is open until 15 September to gather stakeholders’ views on the need to adopt more stringent transparency obligations on platforms with regard to political ads online or to replace the Code of Practice on the subject by binding rules on content moderation, data access and transparency or, even, by a specific regulation on disinformation online.

 

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