Regulating the Internet: Europe’s cautious approach to online safety

Last week we looked at the developing situation in the UK with the Online Safety Bill making its passage through the Houses of Parliament. For the second instalment of our series on online safety legislation, we cross the Brexit border to examine the policy being considered at the same time by the European Union.

With many of the same intentions and concerns in the cyber sphere, how does the EU’s approach differ from their former member across the Channel? In the Brussels branch of our Public Policy team, Aleksandra Kaczmarek looks at the careful considerations of Europe’s leaders.

EU taking a more cautious approach to legal but harmful content

Aleksandra Kaczmarek

The Digital Markets Act

The primary focus of the Digital Markets Act (DMA) is to ensure a level playing field for all digital companies by regulating the way platforms operate. It aims to regulate what platforms (or so-called “gatekeepers”) are allowed to do and not do. For example, issues such as positioning services and products offered by the platform provider at a higher or more prominent ranking than that of competitors.

The DMA is a ground-breaking piece of regulation in the area of competition policy. It introduces ex ante (instead of usual ex post) regulatory compliance, imposing obligations on a narrow set of companies (gatekeepers), usually of US origin. It prioritises the EU’s precautionary principle over innovation, in yet another sector. The DMA sets criteria for identifying the gatekeepers and grants the European Commission the power to undertake market investigations, when necessary, sanctioning companies’ practices.

The Digital Services Act

The other piece of digital legislation currently being debated in the EU, the Digital Services Act (DSA), deals with content on the internet and addresses some of the outdated provisions in the 20-year-old e-Commerce Directive.

The DSA aims to ensure a safer digital space by translating fundamental rights into the online realm. Moreover, it deals with the exchange of illegal goods, as well as misinformation spread, specifically by addressing the algorithms. The basic principle being that what is illegal offline is also illegal online. Furthermore, the legislation will set out the rules for removing illegal content as well as for moderating harmful content. Products sold online will be scrutinised more closely to ensure they are safe and follow EU standards.

In a nutshell, the changes brought about by the legislation will mean:

• Mandatory procedures in place for removing illegal goods.
• New rules to remove or encourage removal of illegal content, in full respect of the freedom of expression.
• Harmful content restrictions will focus on online manipulation that amplifies harmful behaviours, such as the spread of political disinformation, hoaxes and manipulation during pandemics, and harms to vulnerable groups.
• Mandatory risk assessments and more transparency over algorithms to fight harmful content and disinformation

However, there is also space for a co-regulatory framework where service providers can work under codes of conduct, for example, the EU Code of Practice on Disinformation. Indeed, this Code of Practice is coming under increasing pressure to move to a more formal footing particularly in the wake of shifts in geopolitical risks and significant campaigns from state actors.

The forthcoming changes emanating from the DSA also touch upon targeted ads, aiming to limit their ability to use sensitive data to target consumers, and to protect children from them. The European Parliament (EP) has also suggested that online platforms should be prohibited from using deceiving or nudging techniques to influence users’ behaviour through “dark patterns”.

Furthermore, the European Parliament in its position is also advocating for the right to compensation. If the EP’s position is accepted, recipients of digital services, and organisations representing them, could seek redress for any damages resulting from platforms not respecting their due diligence obligations.

Currently, both files are being discussed in trialogue negotiations between the Member States, the European Parliament, and the European Commission.

It is expected that an agreement will be found by the end of March to ensure that political discussions don’t overlap with the French presidential campaign, as France currently holds the EU’s presidency.