Note: this article was translated from French by an automated tool The President of the European Commission, Ursula von der Leyden, called for the adoption of a new strategy relating to the digital economy. The packet " Digital Services ActIs expected on December 15, 2020. Filippo Lancieriand I have answered questions from the Club des Juristes on this point.
Why is the European Union considering adopting new legislation on the digital economy?
To sum up, one could say that there are two types of circumstances which justify the adoption of new legislation by the European Union (EU).
The first type of circumstances is due to the emergence, in the digital sector, of powerful companies with unique and very specific characteristics. The EU has taken note of the fact that the emergence of these immense platforms which we often refer to by the acronym “GAFAM” poses new difficulties which are not only the result of their size or their transnational dimension but also of the particularities of their business model and their considerable impact on public opinion. Not only does the gigantism of platforms allow them to play a major role in their sector of activity - whether it is distribution, intermediation or information - but they have this strategic asset that are the data. Their business model, which combines multi-sided markets, online access on its own applications and the use of massive data, is all the more specific as they are able to compete with the players of the platform while at the same time mastering architecture.
The second type of circumstances is the recognition by the European authorities that the tools they have at their disposal are insufficient to deal with the problems posed by these companies. Although the European Commission and the Member States of the Union are the most active in the world in terms of antitrust investigations relating to digital companies, the fines and sanctions imposed, while significant, have failed to strengthen the competition in these markets. In addition, more flexible regulatory instruments, such as the Regulation (EU) 2019/1150 of 20 June 2019 relating to companies using online intermediation services, are generally considered insufficient.
In such a context, the European Commission has decided to adopt a new strategy which will be rolled out in the future package " Digital Services Act », As announced by the President of the Commission (see Ursula von der Leyden, Political Guidelines for 2019-2024, 2019; European Commission, "Shaping Europe's Digital Future" February 19, 2020). Last June, the Commission launched a public consultation which ended on 8 September. The text is expected in December.
What can we expect from the future " Digital Services Act »?
The purpose of this future regulation is to update existing regulations in order to adapt them to a new reality. It is therefore mainly a question of reforming the “E-commerce” Directive n ° 2000 / 31CE on electronic commerce with regard to the obligations and responsibilities of platforms and to develop competition rules.
This is how the adoption of a new regulation is discussed. former before which would be imposed asymmetrically and would target in particular large platforms serving as " gatekeepers Between consumers and professionals in that they have the possibility of preventing new entrants from entering the market (M. Vestager, Competition in a Digital Age: Changing Enforcement for Changing Times, June 26, 2020). At this time, the European Commission is still reflecting on the various possible alternatives, so it is not possible for us to present anything other than contingencies based on the information disclosed in the press. In all cases, the text should provide, selon le Financial Times, the criteria for identifying " gatekeepers », Or even a list of names, so as to be able to impose specific rules on them without delay, in particular in cases where they offer their services on an infrastructure they own. According to a transitional version of the document consulted by the Financial Times, the " gatekeepers »May be obliged to share the data collected on their consumers with their competitors and may not use, for other purposes, the data received from their professional users for advertising purposes. They would not be allowed to preinstall their own apps or require developers or manufacturers to preinstall their apps while preventing them from being uninstalled. Moreover, the " gatekeepers Could no longer prevent their competitors from selling their products to consumers outside their platform. According to Reuters, who also consulted the leaked draft text, the platforms could be subject to annual audits relating to their methods of reporting and advertising.
In addition, a new instrument relating to antitrust would make it possible to punish conduct that is not currently sanctioned, for example the fact that competitors align their prices without a deal having been reached. According to Thierry Breton, European commissioner in charge of the internal market, it would also be possible to force the biggest players to sell some of their European activities or, in extreme circumstances, to exclude certain players from the European market or to dismantle them.
As regards the regulation of online content, it is not envisaged, according to the comments made by Thierry Breton at FFinancial Times, to revisit the limited liability regime provided for by the "e-commerce" Directive n ° 2000 / 31CE on electronic commerce, according to which platforms are only liable if they are aware of the illegal nature of certain content or have not acted promptly to remove them when they knew about them. The rumor spread that the French government would precisely like to profit from the adoption of the " Digital Services Act " to ensure that the European text includes obligations previously included in the Law n ° 2020-766 of June 24, 2020, known as Avia, and censored by the Constitutional Council in its decision n ° 2020-801 of June 18, 2020. This would mainly involve forcing platforms to quickly remove clearly illegal content by imposing binding obligations and recommendations on them. However, we do not know what the future European text may contain, Thierry Breton having simply indicated that the hosts could be sanctioned if they do not act quickly enough to remove illegal content.
according to Thierry Breton, it is envisaged to create a rating system allowing the public and interested persons to assess the behavior of Internet giants in certain sectors such as the payment of taxes or the removal of illegal content. However, the idea of creating a European regulatory authority is currently excluded.
What is the US approach in comparison?
After many years of inaction, the US authorities have gradually moved towards increased regulation of digital sector markets. Discussions are currently underway in three different areas.
The first area considered is competition policy. US antitrust authorities have opened investigations against Google, Facebook, Apple and Amazon. Indeed, on October 20, 2020, the Department of Justice and 11 Attorney generals republicans have initiated lawsuits against Google on the basis of illicit practices which would have enabled it to establish a monopoly in the field of search engines and online search advertising. It is likely that others Attorney generals states sue Google in parallel, insofar as they decided not to join the action of the DoJ. This case is perceived as constituting almost a repetition of the one which led the European Commission to condemn Google in July 2018, except that the DoJ here demands the dismantling of Google at the end of the procedure. This demand reflects that of the Subcommittee on Antitrust, Commercial and Administrative Law of the United States Congress, which published on October 6 a 450-page report after a year-long survey of the market power of high-tech companies. The report broadly establishes that Google, Facebook, Apple and Amazon have abused their dominance in many ways and calls for a series of legislative changes to strengthen antitrust enforcement in digital sector markets. It therefore considers the possibility of structural separations so as to prevent platforms from operating in adjacent lines of activity, obligations of portability or interoperability of data and services, and limitation of strategic acquisitions.
In addition, discussions are underway on the reform of section 230 of the Communications Decency Act, a key provision which guarantees immunity to platforms for all the content they host, as long as they have been written by third parties (see F. G'sell, Trump and Twitter: the puzzle of controlling what public figures say on social media). In May, President Trump has adopted a Executive order in which he orders the authorities to limit the broad immunity granted by this law. In application of this Executive order, Federal Communications Commission recently announced that it would soon clarify the scope of the text. However, the scope of this presidential decree is limited, as the executive cannot modify the text of the law or the interpretations made by the courts. In all cases, many bills have been tabled in Congress with the aim of modifying the text of section 230. These bipartisan approaches suggest that the Communications Decency Act should be amended in the next legislature, although it is currently difficult to determine which direction will prevail.
Finally, it is planned to adopt a federal law on the protection of personal data. To date, the United States does not have federal legislation organizing data protection and comparable to the European GDPR. Only certain states, such as California with the California Consumer Privacy Act (CCPA), have adopted protective legislation. However, the growing number of data breaches, combined with the risk that businesses will be forced to operate under a patchwork of diverse state laws, has reinforced the case for a federal data protection law.