Widely leaked since before Xmas. The biggest open secret in Brussels. What are we to make of the new EU plans for the Internet, presented today as the Digital Single Market policy? An analysis exposes a few hidden issues.
Today the European Union announced a wide ranging plan to tackle the Internet. Top of its action list is a phenomenon that is becoming known as
“geo-blocking” – that is, the difficulty in getting content from different countries, and the problems of online shopping across borders. It reflects the mis-match between the way that online services are provided on a national basis, and the fact that people want to access to content and services as if the borders were not there.
Another EU priority is how to deal with the global corporations who control so much of our online communications – in this category comes non-transparent and anti-competitive behaviour by search engines and content platforms, and their wider social and legal responsibilities, including the thorny issue of blocking and filtering content.
The announcement is framed as the Digital Single Market, and it is led by two Commissioners – Andrus Ansip, vice president of the Commission and Günther Oettinger, Commissioner for the Digital Agenda.
The Digital single Market is an attempt by the European Commission to change the way it addresses Internet policy-making, dragging the EU from the old era where decisions were made along lines that matched industry structures, to one that is better-matched to the inter-connected nature of online services. This is a big task, and it should hardly be surprising that there will be some difficulties.
The Commission’s policy document is called A Digital Single Market Strategy for Europe. There have been several leaks, including entire drafts of the document. However, some de-coding is required in order to identify specific policy actions.
The first and most obvious comment concerns the 'market' framing. Calling it a 'digital single market' limits the perspective and leaves out a most important factor. The Internet is about communications. It’s also about culture. Both communications and culture may generate markets, but they are also concerned with non-market factors such as society, public interest and fundamental rights. The European Commission is the Guardian of the Treaties and it has the duty to guarantee those rights. If there are competing rights, these must be balanced, and this balancing act will also have economic consequences. A discussion of users' rights belongs squarely in any policy for the Internet, and limiting the policy to markets only, could be a fatal flaw.
The prioritising of “geo-blocking” seems on the surface to be a common sense move. It certainly is something that has been building for the past 10 years or so and many would say ‘about time’! The European Commission is of course presenting it as helping users. However, when you think about it more strategically, it risks creating a whole new hornets nest. There are likely to be fierce inter-industry policy battles, and users will have to fight for their rights.
Indeed, “geo-blocking” appears to refer to two different applications. On the one hand, it applies to online shopping, or purchasing of services where the same items may be differently priced in different countries. Making it easier to buy goods and services from other countries is what the single market is all about. But if I understand correctly, this new policy could be aiming at standardised EU pricing, which would potentially jeopardise the market segmentation strategies of many businesses and undercut their distribution margins. If the EU proposes to judge whether or not segmentation is ‘justified’, as is implied in the document, that would be a significant barrier for many businesses.
On the other hand, “geo-blocking” is clearly intended to target the copyright industries. In the copyright context, it implies a shake-up of the collecting societies and the distribution structure for movies.
The targeting of Internet intermediaries masks a multitude of policy snake-pits. Most obviously, there are the calls for the social media platforms to ‘take responsibility’ in policy areas such as terrorism and children. In this instance, the European Commission has not yet established its policy, but intends to carry out analysis of the need for content blocking and filtering. This is a highly contentious area that engages fundamental rights, and the Commission's progress is likely to be slow. The potential for legitimate content to be blocked by any restrictive measures is something the Commission is aware of, but which users will also need to defend.
New platforms such as Uber and AirBnb, which now incidentally have their own lobbyists, have made it onto the agenda – but I am not sure if the Commission’s consideration of how to regulate them is actually what they were asking for.
Telecoms is the big issue that the European Commission is skirting around. It cannot do anything this year because its previous attempt to legislate remains stuck over the issue of net neutrality – this will have to be agreed between the Council of Ministers and the European Parliament before the Commission can move forward with any new proposals (see Prioritising filtering and fast lanes – the EU Council reveals ‘net neutrality’ mandate .)
So the European Commission proposes to draw up a new law for 2016. This new law would review and reform the framework previously agreed in 2009. The inference in the policy document issued today, is that the Commission will again propose the anti-competitive agenda of the large telecoms companies. This involves significant changes in infrastructure policy, that will potentially reverse the pro-competitive policy direction of the past 20 years. This does not bode well for users' rights. Tucked inside the detail is a plan that will dredge up the protection of data on communications networks and traffic data retention.
Interestingly, the European Commission has little to say about the Data Protection Regulation currently also to be agreed between the Council of Ministers and the European Parliament. However, the policy document does seem to implicitly contradict certain principles established by the Parliament such as those concerning the transfer of data outside the EU.
Last but not least, the European Commission likes the buzzword ‘cloud’. It wants to address the liability of cloud service providers and ensure that Europe has a legal regime that facilitates the blossoming of this new industry, which also brings benefits to users. However, clouds are not always white and fluffy. Sometimes, they signal a thunderstorm.
This article was prepared using a leaked draft of the European Commission's document A Digital Single Market Strategy for Europe . The draft was circulated by the website Politico.
The political context for the Telecoms regulation (Connected Continent) currently being negotiated by the Parliament and the Council, is discussed in my book The Copyright Enforcement Enigma which discusses the 2009 Telecoms Package and the processing of it in the European Parliament. The book explains all about how the political processing works.
If you are interested in how the lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, The EU’s Digital Policy shake-up - fit for purpose or a storm brewing? in Iptegrity.com, 6 May 2015. Commercial users - please contact me.