The European Commission has conducted a’s public consultation on online platforms, which ran between September 2015 and January 2016. Part 1 of the consultation focused on the definition of platforms, problems faced by platform users, transparency issues, switching and access to data. The GSMA explained why formulating a future-proof definition of platforms is difficult, while contending that the European Commission should explicitly include operating systems in its list of examples of platforms. The growing influence of a small number of platforms, a lack of transparency and the possibility of consumer lock-in are all potential areas of concern. There is a need for careful analysis of whether certain types of data should be portable, focusing, in particular, on personal data assets that can lock-in customers and increase switching costs.
Part 2 explored how to handle illegal online content and what duty of care intermediaries should have to detect and prevent certain types of illegal activities. The GSMA concluded that the existing liability provision of the e-Commerce Directive does not need to be modified. With respect to “notice and action”, the GSMA believes an intermediary must be allowed to obtain certainty that any action is legally justified before implementing that action. Moreover, a “take down & stay down principle” would be unrealistic, as it is not in the power of intermediaries to decide whether certain content is illegal or not.
Regarding the free flow of data and cloud (Part 3 of the consultation), there is a need for common industry standards for data interoperability across sectors. However, regulated access could have a damaging effect. With respect to liability in relation to the free flow of data and the Internet of Things, the GSMA believes it is too early to rush to specific legislation during this exploratory phase.