This Upcoming European Legislation Could Reshape the Internet

It’s called The Digital Services Act, and some experts believe that it has the potential to change the internet forever.
October 30, 2020, 1:10pm
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Image: Thierry Monasse/Getty Images

European Union lawmakers are currently in the process of drafting a legislative package designed to rework how internet platforms are regulated, rein in tech giants like Google and Amazon, and strengthen user rights. It’s called The Digital Services Act, and some experts believe that it has the potential to change the internet forever. 

Few details of the project—which is set to be officially proposed by the European Commission by the end of the year—are set in stone. But, a leaked draft proposal reportedly obtained by The Financial Times and three committee recommendation reports from the legislature paint a picture of a sweeping and ambitious set of reforms. 

Some digital watchdogs and privacy groups are cautiously optimistic. As it currently stands, the package seems to be one of the strongest attempts in decades to rethink online spaces on a fundamental level, rather than implementing a patchwork of often weakly enforced regulations. 

“There’s definitely groundbreaking stuff in there,” Natali Helberger, a professor specializing in information law and a researcher at the soon to be launched Digital Services Act Observatory, told Motherboard over Zoom. “I say groundbreaking because it means that we will change our approach to platform regulations, which so far have mainly been based on co-regulation and self-regulation. What we’re seeing now is that there’s finally political momentum that understands that these types of regulation don’t actually bring us that far. And, regulators are showing that they have serious concerns about fundamental rights, about fair competition in the digital marketplace, and about choice for consumers. So yes, that is truly groundbreaking.” 

Handing Back Some Control to Users

One of the larger fish European lawmakers are looking to fry is the issue of targeted advertising. A set of non-binding recommendations from The Committee on Legal Affairs, for example, calls on the European Commission to implement measures “to limit the data collected by content hosting platforms […] in particular by imposing strict conditions for the use of targeted personal advertisements.” 

They also wrote that “User-targeted amplification of content based on the views in such content is one of the most detrimental practices in the digital society, especially when such content is amplified on the basis of previous user interaction with other amplified content and with the purpose of optimising user profiles for targeted advertisements.” In one of the most powerful statements of the report, the Committee calls for the phasing out of microtargeted advertisements altogether. 

Currently, targeted advertising is one of the largest revenue streams for social media giants like Facebook and Twitter, meaning that the committee’s proposal could be a major blow to their profit model. As an alternative, the report advocates for the use of contextual advertisements based on the content around them, rather than collected data on a user’s behavior and preferences. 

Furthermore, if the European Commission listens to the Parliament's recommendations, large tech companies may find it harder to actually keep users on their platforms in the first place. That’s because at least in the discussions so far, there’s been an emphasis on looking into interoperability between different platforms, meaning that users could move and communicate between them using open protocols. 

“Definitely something that catches my eye here in some of these proposals is interoperability,” says Chloé Berthélémy, a policy advisor at the Brussels-based advocacy group European Digital Rights (EDRi). “When I send someone an email, it is never not delivered because I’m using ProtonMail and the receiver is using Gmail. Why? Because they use a common protocol. If I use Facebook on the other hand, I’m trapped in their walled garden. I can’t send a message or an event invite to someone who uses another platform instead of Facebook, and they can’t, for example, post on my timeline. This means that users are essentially locked into using the big platforms just because they’re popular.” 

What Berthélémy is referring to here is called the ‘network effect,’ and it occurs when a company’s product becomes more valuable simply because more people use it. With interoperability and open protocols, users (Berthélémy emphasizes that they should be given the choice to opt in or out of different shared cross-platform functionalities) from smaller platforms would still be able to interact with those from larger ones, giving them meaningful choices that go beyond just a few big players. Still, lawmakers have yet to go so far as to propose legal binding interoperability. 

Leveling the Playing Field 

With that said, a lot of the DSA is less focused on empowering users and more focused on empowering European tech companies. 

For example, the Commission is considering banning ‘gatekeeper’ companies from profiting off data collected on their platforms unless that data is shared with other companies, according to leaked documents reportedly seen by Politico. This concerns digital rights advocates like Berthélémy. 

"We do have to remember here that not every proposal in the DSA comes with the user’s best interest as its core principal,” Berthélémy told Motherboard. “There are a number of economic interests here as well. Let’s take the possibility of search engines like Google being required to share data with competitors as the Commission foresees in its leaked impact assessment. I imagine the European startup industry would be supportive of access to this sort of data, and advocate in favor of this measure to level the playing field for them. But is it really a good idea to have people’s personal data traded around like an economic good? I don’t think so. We are talking about potentially sensitive data and people's privacy here.”

According to the same documents, the Commission also wants to make it illegal for tech companies to self-preference their own products (Amazon was accused of just that in a report last year from the Washington Post). And, they also want to make it so smartphone companies like Apple and Android would no longer be able to pre-install their own apps, opening space for smaller competitors. 

Big Tech is Going to Fight Back 

Beyond hits to their profit models, one of the most contentious issues that tech platforms are sure to be watching is how the DSA updates the current limited-liability regime, which generally holds users, rather than platforms, liable for illegal content. If lawmakers decide to drastically change this–so far it looks like they won’t—it could mean that social media platforms would have to implement upload filters. 

Still, it’s important to remember that this is all still being negotiated, and some of the bold ideas that we’re seeing now—such as banning self-preferencing–may not be what makes it past the finish line. 

Large tech companies have a lot of money and power after all. A report from Corporate Europe, a Brussels-based lobbying observatory, found that Google, Apple, Amazon, Microsoft, and Facebook had spent 21 million euros lobbying on the European Union level. It also claimed that they had a number of close and secret ties to various influential think-tanks. 

European officials have however become increasingly irritated by tech companies, which in the past have functioned with relative impunity. Recently, European parliamentarians sent a letter to Jeff Bezos asking him if he was monitoring them, and in a live debate, Thierry Breton, a European Commissioner, told Mark Zuberburg to “Pay taxes when you have to pay taxes.” They’ve also started to back up their bark with some bite. The European Union has fined Google a combined $9.5 billion since 2017 for breaking antitrust regulations, and in 2019 launched an antitrust probe into Amazon that could result in a fine of $23 billion.  

All this sets up a murky view of what's to come, says Helberger. 

“What will happen is that there will be proposals, then the policy game will start and there will be a lot of negotiations,” she told Motherboard. "What we’ve seen in the past is that there have been many good proposals that were later watered down as part of this political process and the immense lobbying machine. It’s difficult to know what will survive, but what I do see is serious thinking and serious political will. All I can do is sincerely hope that in the end we’ll see, of course, more commitments to ethics and transparency, but most importantly regulation. Regulation is what we really need.” 

Google and Amazon have not yet responded to a request for comment. A Facebook spokesperson pointed Motherboard to the company’s response to a public consultation on the DSA and a post by Head of EU Affairs Aura Salla.