On May 6, the European Union’s Commissioner for Digital Economy and Society, Günther Oettinger, and the Vice President for the Digital Single Market, Andrus Ansip, presented the EU Commission’s strategic plan to establish the Digital Single Market, or DSM.
Previously known as the Digital Agenda, the re-branded initiative aims to update and harmonise EU legislation related to the digital sector that would lead to the establishment of a long-time promised single market in this sector. Legislation that emerges from this process will impact not only the EU economy, but also people’s fundamental rights, such as the right to privacy and free expression. While delivery on such a promise would be welcome, the Digital Single Market has become a real unicorn: a great project that everyone talks about but that no one has seen in practice. Rather than advancing an ambitious strategy, the European Commission has delivered a proposal on DSM that makes it seem like a crippled unicorn.
Since being nominated to role of EU Commission President in November, Jean-Claude Juncker has made it clear that creating the DSM would be one of his top priorities. The strategic plan presented early this month serves as a road map for the realisation of that promise. The proposal includes 16 initiatives for legislative reform to be undertaken in the next five years.
Below, we take a look at what some of the initiatives propose, cutting through the jargon to explore the implications for digital rights. We also offer our assessment of the plan and its potential for success.
1. Copyright reform
After more than five years of reflection, the Commission’s position on copyright remains ambiguous. Last year, public consultation on EU copyright rules resulted in a clear call for common rules across the continent, as well as clear exceptions to copyright protection for the non-commercial use of protected works. There was also strong support for making relevant existing exceptions to copyright protection, such as parody, quotation, incidental use, and private copying, mandatory across EU member states. Now it appears that the Commission has decided to ignore the result of its own consultation. Even worse, the plan for the DSM includes ACTA-like proposals for dealing with intellectual property infringement — despite the fact that the European Parliament rejected that controversial agreement in 2012.
2. Radio spectrum harmonisation
The proposal on radio spectrum put forward in the DSM plan is neither ambitious nor realistic. In the past, the European Commission has advanced several good proposals to harmonise radio spectrum management. Each of these proposals failed because EU member states have systematically refused to tackle the issue due to fear of losing sovereignty over their infrastructure. While radio spectrum harmonisation would be a welcome development in Europe, it is unclear that the Commission will be able to convince member states to cede control of the issue when they have categorically refused to do so in the past. This problem of competition between the EU and the member states will need to be addressed before any progress can be made.
3. Combating “illegal content” on the internet
Over the past few years, the Commission has launched several initiatives to address the management of content online, such as the failed Clean IT initiative — aiming at reducing terrorist use of the internet — and the CEO Coalition, which focused on child safety. Both of these initiatives were based on self-regulation and public-private voluntary cooperation. Often lying outside the rule of law, these types of initiatives have been shown to be ineffective, and many have consequently been abandoned. In the DSM strategic plan, the Commission proposes to investigate the role of online platforms. The consultation will aim to determine whether “new procedures” requiring intermediaries “to exercise greater responsibility” to remove content are needed. In other words, despite past failures, the Commission is still not convinced that removal of content is not in line with the EU Charter of Fundamental Rights. That’s unfortunate because such removal could seriously endanger users’ freedom of speech and right to privacy.
4. Enabling the “free flow of data”
The Commission proposes addressing “unnecessary” restrictions on the free movement of data within the EU. It is unclear what “unnecessary restrictions of data flows” are and how this proposal would jibe with the future legislative framework on data protection without undermining users’ privacy.
5. Growth through Big Data
The Commission defines Big Data as a “goldmine” and identifies it as one basis for the long-term growth potential of the EU digital economy. Despite acknowledging that a vast amount of data are being collected and that this presents challenges for the protection of EU citizens’ personal information, the DSM strategic plan does not advance any proposal to address these challenges. Instead, it focuses solely on the revenue that using this pile of personal data could bring to the EU. At a time when the European Commission is looking at the EU member states diluting the ongoing data protection reform, it seems that the Digital Commissioners want to take a step further in the exploitation of citizens’ personal information.
6. Tackling the so-called “unjustified geo-blocking”
Establishing a pan-European licensing system to enable people to access national and public content no matter where they are in Europe would certainly be a welcome improvement. However, the Commission’s strategy on geo-blocking, the practice of restricting access to content based upon the user’s geographical location, is unclear, as disagreements remain within the institution. While Commissioner Oettinger has said there is no hurry to end geo-blocking, Commissioner Ansip has made ending it a top-priority of the strategy. In fact, ending geo-blocking seems to be Commissioner Ansip’s personal favourite battle. But as it often is with the Commission, the devil is in the details. The DSM plan would not end all geo-blocking but only the “unjustified” type — which remains undefined.
A strategic plan missing its foundations
As the Commissioners have explained, introducing the DSM strategy is only a first step toward realising the proposed measures. We are disappointed at the lack of ambition and clarity in this five-year plan. In fact, we argue that this strategy should actually be a second step in the realisation of the European Digital Single Market.
For several years, the General Data Protection Reform and the Telecoms Single Market proposals have been stuck in the Council and continue to be watered down. This has prevented Europe from implementing a harmonised set of rules on data protection and Net Neutrality. These are crucial reforms that should form the foundation of the Digital Single Market. The European Commission needs to focus on delivering these promises — strong data protection and Net Neutrality — before making new ones.
Although the Commissioners would have us believe that their plan for the Digital Single Market should be received with trumpets and fanfare, the plan is not very solid, and as such, it may not survive.
Contribution by Justine Chauvin.