The European Commission launches a consultation on the Digital Services Act

On June 2, the European Commission opened a public consultation on the Digital Services Act, pressing forward with the objective stated by President Von der Leyen in her political guidelines.

Through this consultation, the Commission seeks to gage the opinions of all stakeholders in society (including digital service providers, companies with online impact, authorities, NGOs, the academic world and civil society) to set up a modern regulatory framework for digital services.

The current digital services regulation (e-Commerce Directive), created at the turn of the century, has proved essential in developing and growing digital services in the EU. However, the European Commission has considered it necessary to address the new issues that technological advances have elicited and establish modern EU regulations that:

• Clearly establish the obligations of online intermediaries and an effective governance system to oversee the correct application of the rules.
• Guarantee the security of internet users and their essential rights, particularly the freedom of expression.
• Offer fair competition to European companies to ensure consumers have choices and ensure competition in the single market

The consultation covers a wide variety of issues commonly affecting citizens and companies online. The questionnaire proposed by the Commission is thus structured in the following six blocks:

• Effective user protection. In terms of online security, the Commission aims to obtain information on the illegal activities that take place online (related to goods, content, and unlawful services) and the measures currently adopted by digital services in detecting those practices. Different alternatives are also raised regarding possible obligations and responsibilities for online intermediaries, to determine the most effective online user protection system.

• Liability system for intermediary service providers such as marketplaces or app stores and other platforms. In the second section, the Commission asks about the functioning of the current liability exemptions system envisaged in the regulations and its possible amendment.
• Issues regarding the power of control of digital platforms. Digital platforms can concentrate significant economic power, and this entails some risks for potential competitors and companies using them to carry out their commercial activity (e.g. establishing unfair contract terms). This highlights the need to identify and define the scope of the consequences of this phenomenon to address the problems arising from the strong economic power of large platforms. It is also relevant to mention that the European Commission has opened a second public consultation on a new instrument of competition.
• The European Commission is also looking for further information on emerging opportunities and issues in digital services, such as online advertising and smart contracts.
• In the fifth section of the consultation, the Commission focuses on self-employed individuals who offer their services via online platforms to learn about the problems and obstacles that this economy presents and the avenues for improvement.
• In the final section, the Commission asks about governance and supervision systems to be strengthened to complete the digital services single market, as well as the means to improve cooperation between authorities. In this area, in reference to the current COVID-19 health crisis, the Commission states the need for a strong Single Market to drive the European economy and restart economic activities in the EU.

The consultation will be open until September 8, 2020 and the data obtained will impact the regulatory proposals on digital services that the Commission plans to publish at the end of the year.

You can access the public consultation here.

Authors: Ainhoa Rey and Albert Agustinoy