Digital Single Market – in like a lion out like a lamb?

The Digital Single Market needs no introduction when talking to people in Brussels. It is one of the Juncker Commission’s flagship initiatives, launched amid much anticipation back in May this year. The ‘DSM’ strategy announced a range of measures and ideas to improve access to online goods and services and help them ‘flourish’, and ‘maximise the growth potential’ of the Digital Economy in Europe. What does that mean exactly? Well, beyond the Commission-speak, it’s pretty simple really. But it takes a bit of digging to get to the core of what the Commission is trying to do.

First of all, it’s worth looking at why the DSM is such a big deal. This is an ambitious project. And, so far, attempts to introduce policy on digital issues at EU level have not been easy. There was the ‘Connected Continent’ proposal hailed by Commissioner Neelie Kroes as  ‘the single biggest thing the European institutions could finalise in 2014 to boost growth and jobs’. That was blocked in Council amidst squabbles over spectrum and roaming, and the institutions only managed to finalise it in October 2015 – having deleted most of the points which the Member States couldn’t agree on, leaving only about half of the original proposal. Then there is the General Data Protection Regulation, a hugely ambitious project to bring EU data protection laws into the digital era. That’s taken almost 3 years to finalise, and the Parliament and Council are still struggling to find agreement on some fundamental issues. And finally, the Network Information Security directive, a hugely important piece of legislation designed to protect us all from cybersecurity attacks – that’s also been in the works for almost three years. Just to put that into perspective, when the Commission wrote both these legislative proposals in 2011 and 2012, no-one had heard of Edward Snowden or Max Schrems and Uber, Snapchat and Tinder hadn’t been invented yet.

So, scene set. We get it. It takes a long time to pass legislation in the EU – that’s no surprise. But what I hope my little history lesson here has also shown is that when we’re talking about digital issues, the world moves fast even if the European institutions don’t. Which is why the Commission is trying to learn from past mistakes with its new flagship initiative, the DSM. This time, before even starting to write any legislative proposals, the Commission has been bending over backwards to get input from as many stakeholders as possible – both on a political and industry level. Politically, the Commission has been highly involved in the preparation of the Parliament’s report ‘Towards a Digital Single Market Act’ as they see it as an opportunity to figure out what MEPs want (or, more likely, what they don’t want) and forge some political compromise before the legislative process gets started. Similarly, industry has been trying to provide input to more than 10 public consultations launched on the DSM since September.

On the most ambitious (and, possibly, the most controversial) parts of the DSM, the Commission is moving forward cautiously. Geo-blocking, for example, was touted by Vice-President  Ansip as a ‘game-changer’ back when the DSM was launched in May this year. Ansip’s ‘crusade’ on geo-blocking, however, appears to have been scaled back. Whilst Ansip used to talk a lot about the frustrations of not being able to watch his favourite Estonian TV programmes online when he’s in Brussels, the public consultation on geo-blocking, which was launched in September, appears to focus almost entirely on geo-localisation techniques used by e-commerce sites – and largely overlooks the issue of copyright territoriality. The Commission has now announced that it will publish a proposal on ‘cross-border portability of online content services in the internal market’ under the banner of ‘copyright reform’. Which in all honesty sounds like it will tackle what Ansip originally called ‘geo-blocking’. Geo-blocking, therefore, appears to have been scaled back from a very complicated (and politically charged) question of copyright to focusing solely on e-commerce.

So, if geo-blocking is the first issue to be scaled back in the name of political compromise, what will be next? Lately, Commissioner Oettinger has been talking a lot less about his ambitions to regulate ‘platforms’, having faced strong criticism from MEPs across all parties and industry stakeholders. And what about copyright? We understand the Commission’s approach is to split it up into several ‘bite-sized’ pieces of legislation tackling specific issues, rather than attempting to reform all EU copyright rules in one go. But don’t worry – there’s still plenty of bite left in the DSM to keep everyone busy for the next year. The DSM may have come in like a lion, but it’s certainly not going out like a lamb.

Catherine Armitage