EU Policy Update – September 2021
In a nutshell: Ursula von der Leyen delivered her speech on the State of the Union. Denmark and Germany’s ministers called for stricter rules in the Digital Services Act (DSA), while EEA EFTA states called for more balance with freedom of expression. JURI and ITRE adopted their opinions on the DSA. The Slovenian Presidency circulated its proposal for a compromise text on the DSA. Potential areas for consensus were debated in trilogues regarding the e-Evidence proposal. The Netherlands released a non-paper on the Data Act ahead of the EU proposal expected in December.
The President of the European Commission delivered her State of the Union speech
On 15 September, the President of the European Commission, Ursula von der Leyen, delivered her State of the Union speech, that amongst other things outlined a few upcoming legislative reforms for 2022. In the digital sphere, this includes a reinvigorated “cyber defence” backed up by upcoming legislative initiatives, such as a “European Cyber Defence Policy, including legislation on common standards under a new European Cyber Resilience Act”. Other notable mentions include a “new connectivity strategy called Global Gateway” that will include partnerships with other countries for “quality infrastructure, connecting goods, people and services around the world”; and a new legislative proposal “to combat violence against women”, including prevention, protection and effective prosecution, online and offline. A list of key initiatives for 2022, following the President’s speech, is also available here.
The Netherlands released a non-paper on the Data Act ahead of the proposal
As reported earlier, the European Commission is expected to put forward a Data Act, including the revision of the Database Directive. The purpose of the Data Act is to set “the right conditions for better control and conditions for data sharing for citizens and businesses”. The Commission’s proposal for the Data Act is scheduled for December 2021. In the lead up to the proposal, the Netherlands published a non-paper on the Data Act calling for stronger interoperability for data re-use and portability. For this objective to be achieved in full compliance with data protection legislation, the Netherlands urged the Commission to put in place the necessary safeguards through standardisation efforts and better EU cooperation. When it comes to the Database Directive revision, The Netherlands called for the right balance to be achieved “between the interests served by the protection of databases on the one hand and the use of databases on the other”. As for data sharing agreements, the Netherlands stressed that it is important that the “Data Act ensures clear and fair data access and usage rights” where data is co-generated and valuable to multiple parties.
ITRE adopted its opinion on the Digital Services Act
On 27 September, the European Parliament’s Committee on Industry, Research and Energy (ITRE) adopted its Opinion on the Digital Services Act (DSA). The ITRE Opinion recommends barring intermediaries from their liability exemption where the service provider “promotes or references content”. The Opinion also suggests that injunctions in relation to infringing content should only be addressed to the intermediaries lower in the internet stack “as a last resort” and where “other reasonable and proportionate action closer to the content owner is not available”. Similarly, orders or requests for content removal should also only be directed to intermediaries lower in the internet stack “as a last resort”. The opinion also stated that the Digital Services Coordinators’ powers should be subject to “the highest safeguards laid down in the applicable national law” and in “absolute conformity with the Charter and general principles of Union law”. Finally, the opinion recommends applying the so-called “Know-Your-Business-Customer” (KYBC) principle to providers of online marketplaces.
JURI adopted its opinion on the Digital Services Act
On 30 September, Members of the European Parliament’s Legal Affairs Committee (JURI) adopted their Opinion on the DSA. The JURI Opinion seeks to clarify that the guiding principle regarding “illegal content” should be that “what is illegal offline should be illegal online”. Regarding liability exemptions, JURI suggests that a service provider should not benefit from a liability exemption when it “organises and references the content, regardless of whether this is automated or not”. JURI also suggests to allow judicial or administrative authorities to issue orders to intermediary service providers to restore lawful content. Finally, the adopted opinion claims that all intermediary service providers should “ensure the visibility of trade users alongside the goods and services provided”.
The Slovenian Presidency presented its proposal for a compromise text on the Digital Services Act
The Slovenian Presidency circulated its proposal for a compromise text on Chapters I and II of the DSA in the Council of the EU. One notable amendment for internet infrastructure actors, as evident from this version of the text, is the clarification of the definition of illegal content, which should follow the guiding principle that “what is illegal offline should also be illegal online”. The proposed text also suggests expanding the list of illegal content to include “the provision of services in infringement of consumer protection law”. The text also suggests explicitly adding registrars to the list of providers of services which can benefit from a liability exemption. Additionally, the proposed compromise text suggests that the KYBC principle should only apply to providers of online marketplaces.
Denmark's and Germany's ministers called for stricter rules on platforms in the Digital Services Act
Simon Kollerup, Denmark’s Minister for Industry, Business and Financial Affairs and Christine Lambrecht, Germany’s Federal Minister of Justice and Consumer Protection published a joint letter calling for better consumer protection and product safety in the context of the DSA negotiations. “This is especially of concern when discussing the impact of online marketplaces and social media, where illegal content flourishes, where fake shops, illegal products and damaging and punishable statements appear repeatedly[...]”, wrote the ministers. According to the letter, platforms need to take more responsibility to “prevent and counteract illegal content”, while taking all reasonable technical and operational steps to prevent illegal content from becoming visible to consumers on their platforms. The ministers also “want online platforms to assume responsibility for their sellers’ obligation to comply with consumer legislation” and to be obliged to correct the self-classification of a commercial trader who claims to be a private individual. They also claimed that it is essential that national legislators “ensure the efficient removal of illegal content” and “set corresponding deadlines for such removal” for service providers.
EEA EFTA states issued a comment on the Digital Services Act
On 29 September, European Economic Area (EEA) states issued a comment on the DSA. The EEA EFTA states (Iceland, Liechtenstein, and Norway) generally support the overall objectives of the DSA proposal and share the concern that illegal content and harmful activities “continue to remain widespread on the internet”. The EEA EFTA states strongly support the idea that the key principles of the e-Commerce Directive should be maintained and agree with a graduated and proportional approach to new due diligence obligations. They note that “the proposal does not include explicit safeguards against over-removals of certain types of content”. In this regard, the EEA EFTA states believe that there is a need for an explicit safeguard to ensure “that intermediary services refrain from content moderation, suspension, disabling of access to or otherwise interfere with editorial content and services made available by editorial media”. Regarding the reform of intermediary liability, the EEA EFTA states emphasise that the “due diligence obligations established by the DSA proposal should be understood as complementing and adding to the current system of liability exemptions[...], without modifying the conditions under which intermediary services may benefit from a liability exemption”.
Member States debated potential consensus areas with the European Parliament on e-Evidence
Despite disagreements, some potential areas for consensus between the European Parliament and the Council of the EU were identified during trilogues, according to the Presidency note from 26 August. The notification regime is an important element of the Parliament’s position on the e-Evidence regulation, which requires Member States to notify the receiving Member State of any cross-border data access orders targeting its providers. The Presidency note explained that the Parliament continues to strongly advocate that a notification should be required for cross-border data access orders, in opposition to the Council’s views. The note also revealed that the Parliament seems to be open to notifications for subscriber data access orders for “information purposes” only, meaning that national authorities would not be entitled to oppose foreign subscriber data access orders. The regime would however be different for traffic and content data, as the co-legislators have informally agreed that “optional grounds for refusal” should be included in the Regulation. The Presidency’s note also disclosed that the Parliament proposes to give service providers the “right to refuse the execution of an order where it considers the order manifestly abusive” or when it exceeds its purpose. No agreement has been found in this regard as the Council is not in favour of such a measure. The e-Evidence package remains one of the key priorities for the Slovenian Presidency, according to Slovenian Minister of Justice Marjan Dikaučič, as stressed during the European Parliament’s Civil Liberties Justice and Home Affairs (LIBE) committee meeting on 1 September. The Presidency hopes to “make a major breakthrough” or finalise the negotiations on the draft regulation.