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This month saw an increase attention on encryption with the Commission launching an experts’ group and data protection authorities entering the debate. In parallel, the Commission released the long-awaited proposal to simplify cross-border access to e-evidence in criminal investigation. With deadline for the GDPR implementation approaching, new guidelines have been adopted to help the industry, while the WHOIS has been sanctioned again by DPA for non-compliance with the new data protection paradigm. New legislation on terrorism is being politically pushed by Germany, which would introduce a permanent monitoring obligation for platforms. Finally, ethics are entering the digital debate with the new Artificial Intelligence package.

In a nutshell: this month’s EU Policy Update sees the consolidation of important trends. Member States’ Recommendations have been released, calling for intermediaries to be more “responsible” in tackling illegal content online. Similarly, the discussions on IT security are progressing in the Cybersecurity Act, where clear responsibilities and liabilities for all stakeholders taking part in ICT ecosystems are proposed. In parallel, a new mechanism aimed at facilitating the gathering of evidence in justice investigations will be proposed, including provisions for direct access to companies’ data by authorities of foreign countries. All this comes in the context of a data economy where even if the mandatory location of data by government could become more complicated, nothing prevents States to discuss new EU data retention provisions and companies are even further restricted in their ability to process data.

The Commission and WP29 are worried about the state of affairs of GDPR implementation – and so are businesses according to surveys. Both the EU and Member States are stepping up the fight against illegal content. “Voluntary” measures are often not deemed enough at national level where laws have been or are being implemented. What shape an instrument at EU-level will take remains to be seen. We also look at cross-jurisdictional issues, including a potential solution to the Microsoft vs. DOJ case and how MPA managed to block content in Ireland.

If anyone expected the content debate to slow down in 2018, the Commission has proven them wrong. Already in the first weeks of the year, the Commission gathered more than 20 CEOs to tell them that their efforts to remove illegal content have improved but are by far not sufficient. Next week, the Commission will publish another evaluation report and by May, we will know whether to expect legislation or “just another voluntary” initiative. Businesses are responding by increasing their transparency – not only with regards to their efforts in fighting illegal content, but also in making users more aware of how much of their (personal) data governments request to access. Some key Digital Single Market files (ePrivacy, copyright, free flow of data) will be picked up again during the first quarter of the year, this time under the lead of the Bulgarian Presidency (check out the nice combination of Latin and Cyrillic script in their logo). Developments in the US are likely to swap over the Atlantic and impact the way EU citizens’ data is protected within and from the US.

EU decision-makers are slowly wrapping up major digital single market-related files before the end of the year. The Consumer Protection Cooperation regulation is (almost) signed and sealed with the European Parliament having approved trilogue negotiation outcomes (with some unfortunate results). Copyright issues (rightly or wrongly included in some dossiers) stifle most ongoing negotiations – but the will is there to find solutions. Accordingly, liability remains an important issue, e.g. for copyright-infringing or otherwise illegal content on platforms. Twitter and YouTube have recently changed their policies to (voluntarily) address harmful content. We can also see that across the Atlantic, the US has restricted the use of gag orders and announced a roll-back of net neutrality.

Brussels has been a hive of activity over the last four weeks, with a flurry of new policy initiatives and advancements in ongoing files of relevance. Most notably, the European Commission published its long-awaited guidelines on notice & action and voluntary content control, which serve to codify the EU policy trend that sees the Internet sector’s role in online content control move from a ‘reactive’ to a ‘proactive’ relation. Meanwhile, the lawmakers continue to discuss the legislative proposal for an E-Privacy regulation, with continued possibility that Member States will use the legislative proposal to reintroduce data retention obligations at EU-level. In a positive development, the European Commission has ruled out any medium-term EU-level action to weaken encryption through legislation, but will use the upcoming legislative proposal on cross-border access to e-evidence as an alternative means of mitigating the perceived ‘going-dark’ problem.

The EU legislative session is officially back in swing, with a whirlwind of initiatives on the table for a packed second half of 2017. As it enters into the tail-end of its political mandate, the European Commission has been keen to highlight its continued legislative ambition, as it seeks to finalise the remaining legislative proposals of the 2015 Digital Single Market strategy. September has already seen the launch of a host of new cybersecurity initiatives, while a landmark communication on notice & action in the Internet sector is on the verge of publication. Meanwhile, the EU co-legislators have returned from their summer break with renewed motivation to make advancements on key ongoing legislative negotiations – namely, the e-Privacy regulation, and the Copyright Reform directive.

In spite of the traditional summer lull that has descended across Brussels’ European quarter, the EU Institutions have been quietly preparing for what is set to be a hectic autumnal legislative session. Most noteworthy is the European Commission’s intention to come forward with a legislative proposal on cross-border access to e-evidence in the coming months, and a key policy roadmap for the initiative has just been released. Besides this, the European Commission will publish both a revised cybersecurity strategy and new guidelines on voluntary online content control measures in September, with officials putting the final touches on both this month. In terms of ongoing work, the European Parliament continues to focus heavily on online child protection and the fight against terrorism, while the legislative discussions around the proposed E-Privacy regulation – and all its linkages with data retention – continue in earnest.

Unsurprisingly, national debates about how to increase security in the light of terrorism carry over into this week’s European Council meeting. It remains to be seen if fundamental rights can stand the test of time. “Brussels” is getting ready for the summer recess, yet not without giving a good pre-break push to some of the key dossiers (e.g. ePrivacy draft report, Consumer Protection Cooperation trilogue). Watch out for a couple of new (or awaited) initiatives in the last trimester of 2017, such as cybersecurity, data flows and collecting e-evidence across borders.

The EU (among others) has been taken by surprise: WannaCry has demonstrated how ill-prepared the block is against cyber-attacks. Expectations are high that the Network and Information Systems Security Directive (NISD) will increase both public and private actors’ capacity to prevent and react to large-scale incidents. Also, the EU is revamping its Cybersecurity Strategy and Europol has been equipped with new powers and is very keen on communicating its actions and successes. Other Digital Single Market (DSM) related files are also moving forward, e.g. the audio-visual media services directive (AVMSD). The widened scope of the AVMSD, new initiatives proposed under the DSM review together and (Member State) actions against hate speech (see Facebook) are strong indicators that intermediary liability is high on the agenda again. For now, the European Commission, especially DG Connect, still displays itself as the defender of the e-commerce Directive and its principles – but its defence lines crumble under increasing pressure from the Member States and the Commission’s own sectoral legislation.