EU finalises digital rights legislation to counter influence of Big Tech

The European Union is preparing the world's first Digital Rights Act to protect users of electronic devices from harmful and unlawful content and enable them to gain control over their data from Big Tech.

Proposals for two separate legal instruments, the Digital Services Act (DSA) and the Digital Markets Act (DMA) aim to create a single set of rules applicable across the EU and create a level playing field for online companies and sites. The targets of the legislation are primarily the major American-based companies including Google, Microsoft, Facebook, Amazon and Twitter, who dominate the online space. Concerns have been expressed that the changes will result, not in greater competition, but in greater regulation for speech within the European Union.

The DMA will set rules for major platforms to prevent them from imposing anti-competitive practices on businesses and consumers, which have seen them rank their services and products higher than others and prevent users from removing pre-installed software or applications. The DSA focuses on creating a safer digital space for digital users and companies, by protecting fundamental rights online through targeting the trade and exchange of illegal goods, services and content online and algorithmic systems amplifying the spread of disinformation.

When the European Commission proposed the digital acts in December, 2020, Vice-President Margarethe Vestager, who oversees competition issues, said digital platforms had to be held to account and stop unlawful content.

“We need their commitment in the fight to stop the spread of disinformation, which can damage our democracies. Our job is to provide the necessary framework in which they can act responsibly,” she said.

It is now very likely these instruments will become law across the EU. In January this year the European Parliament, by a vote of 538-78, approved the DSA which paved the way for so-called Trilogue negotiations in which the European Commission and Parliament, together with the European Council made up of representatives of national governments, meet behind closed doors to shape a final version.

A preliminary meeting was scheduled for March 15 to try to work out differences and deal with criticisms. Those who have expressed concern about the proposed legislation include the Electronic Frontier Foundation (EFF) which said it was worried about a mechanism giving privileges to “special flaggers” of content, which could include law enforcement.

Another provision, the group said, is that the law “Allows governments alarming powers to uncover data about anonymous speakers - and everyone else - without adequate procedural safeguards.”

The digital acts would require major technology companies to police their content as well as placing more restrictions on advertisers tracking and monitoring users’ browsing habits and preferences.

The measure in its present form would force companies to remove content that is considered illegal in the country where it is viewed, such as Holocaust denials in Germany or racist postings in France.

It would also let European users opt out of targeted advertising more easily and prohibit companies from targeting advertisements at children.

“We are going to take a stand against the Wild West the digital world has turned into, set the rules in the interests of consumers and users, not just of Big Tech companies and finally make the things that are illegal offline illegal online too,” said Danish MEP Christel Schaldemose, who led the bill negotiations at the time.

Diego Naranjo, Head of Policy for European Digital Rights (EDRI) told Blueprint for Free Speech that, “The DMA and DSA could be far reaching enough if the final texts are strong enough.”

He said that, “No legislation is a silver bullet but these will be great steps in the right direction that the General Data Protection Regulation (GDPR) and the e-Privacy Directive started in reducing the power of Big Tech.”

He added: “Once the legislation is adopted there will be probably some things to fine-tune during the implementation phase and there will definitely be a learning curve for everyone involved in the enforcement … we do have big hopes for both pieces of legislation.”

There are more than 10,000 online platforms operating in the EU and more than 90 percent are small and medium-sized enterprises, the acts focusing on search engines, shopping and booking sites, operating systems, and service providers.

Reporters Without Borders (RSF) said that the regulations should oblige platforms to promote reliable sources of news and information in their search engine results and newsfeeds and take action to weed out fake news.

The US has lobbied against the legislation, complaining the EU singled out American tech platforms. Some observers agree.

Writing for the Center for European Policy Analysis (CEPA), Hosuk Lee-Makiyama Director of the European Centre for International Policy Economy think tank in Brussels and Robin Baker, a Research Associate at the London School of Economics, said the EU is trying to be too controlling:

“Brussels seems hell-bent on tackling Silicon Valley’s dominant ‘online platforms.’ This loosely defined concept can refer to virtually any company that is successful, challenges old-fashioned business models – and therefore, is rarely European.”