Tech policy can expect more targeted actions around the access to data, the role of online platforms, and the use of competition law.
Since 2014, the positive political tone around tech has been gradually chipped away at by developments such as Commissioner Vestager’s enforcement decisions against Apple, Google, and Amazon, as well as the fast and loose data protection principles demonstrated by Facebook and Cambridge Analytica.
While Commission President Jean Claude Juncker prophesised, in 2014, that the Digital Single Market (DSM) would generate up to €250 billion of additional growth in Europe, the tech sector now gets more closely associated with tax avoidance, data hoarding, and copyright infringements.
Summarising the current political atmosphere, Guy Verhofstadt, the Chair of the European Liberal Group (ALDE), wrote that ‘the West urgently needs to develop a new mode of digital governance’ for tech. This tone will permeate the key digital areas that the political leaders will need to tackle over the next 5 years, in particular concerning the access to data, the role of online platforms, and the use of competition law in digital markets.
Access to data
In 2016, Vice-President Ansip stated that there was a need to “break data silos in companies, public institutions and also across borders”. With strong data protection principles in place, the new Commission will be able to take on this battle, break up ‘data monopolies’, and push to open-up this data for access and re-use.
Insights for this open data policy can be garnered from the Open Science agenda (which made EU funded research data open to all), the recently proposed revision to the Public-Sector Information (PSI) Directive, and the non-legislative Communication on ‘Towards a European Data Space’. The latter document details that for business to business (B2B) data-sharing, the Commission will establish a Support Centre for data sharing in early 2019, which will collect best practices, existing model contract terms and checklists.
For business to government (B2G), a newly established expert group on Business-to-Government (B2G) sharing is the first step on defining legal, economic, and technical obstacles. Both initiatives are trademark first step towards future legislative actions.
Another core policy area which will undergo the Commission’s scrutiny is the highly contentious role of online platforms. While the Juncker Commission began with voluntary measures such as the Memorandum of Understanding (MoU) for the sale of counterfeit Goods via the internet, and then moved into legislation such as the Platform to Business (P2B) proposal and terrorist content proposal, there has continued to be an ever increasing political pressure.
Both Francoise Nyssen, France’s Minister for Culture, and Mounir Mahjoubi, France’s Minister for Digital, have separately called for the explicit revision of the e-commerce Directive, which provides certain platforms with ‘limited liability’ for content uploaded to their service. The German coalition agreement of the CDU and SPD also noted that they are open to the revision of this Directive.
As a first step, an EU Observatory on the Platform Economy will produce guidance and expertise on this sector. However, as Mounir Mahjoubi, France’s Minister for Digital, exclaims that ‘platforms can’t be the sole creator of all net rules’; the Commission cannot refrain from opening up the legislative file that lies at the centre of the debate.
Competition law for digital markets
While access to data and the role of platforms are key areas for policy action, there is also be an important, and interlinked, role for the EU’s all-powerful DG Competition. The Parliament’s recent Report on Competition warn that ‘digital companies constitute a specific challenge for the competition and fiscal authorities’ and the Commission, under the guidance of the Commissioner for Competition, Margrethe Vestager, has opened a call for contributions in ‘shaping competition policy in the era of digitisation’.
While certain MEPs want competition law to create ‘a full-blown structural separation’ of Google’s services, the Commission has instead set more modest objectives. The Commission is directing their attention on identifying whether data is causing competition issues, if digital platforms have too much market power, and how competition policy needs to act to preserve digital innovation (e.g. by limiting network effects).
On the specific case of data, Commissioner Vestager has stated that ‘controlling large amounts of data shouldn’t become a way to shut rivals out of the market’, and this line of thought has been manifested in the preliminary investigation into Amazon and, longer term, shall feed into the Commission’s evaluation of its EU Merger Control Regulation. In the absence of issue specific legislation, the next Commission will actively use a case-by-case approach to set precedents on what is acceptable in the digital terrain.
While broad discussions will abound on emerging areas such as artificial intelligence (AI) and blockchain, it’s clear that tech policy can expect more targeted actions around the access to data, the role of online platforms, and the use of competition law.
While 2014 was filled with hope for the potential of tech, the 2019 year of change means the timing is rife for a sharper and revamped Digital Single Market agenda.
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October 18, 2021