In this digital age, the future of our democracies, societies and economies depends on digital ecosystems that are open, fair, competitive, and respectful of the rule of law.
The adoption of digital technology brings the promise of addressing some of the biggest challenges of our times: climate change, inclusion, socio-economic growth – just to name a few. However, progress will only happen if digital industries are able to advance a purpose that goes beyond just delivering for narrow categories such as “users” or “consumers”. Digital technology needs to serve citizens.
For this reason, we believe that the European Commission’s efforts in shaping a “Digital Services Act” (DSA) has the potential to be one of the most relevant tech policy exercises of our generation. Not only it will be relevant to millions of European citizens and businesses, but also has the potential to inspire a new global approach to digital markets.
In this context, the GSMA and ETNO take a view that the digital economy is a broad, diverse ecosystem. One in which innovation thrives through collaboration and competition, but also through shared responsibility and accountability across global value-chains.
The DSA approaches two fundamental aspects of today’s digital markets. On the one hand, we must address the balance between ensuring fundamental freedoms and preventing illegal and socially toxic activity online. On the other hand, we should tackle the effects of excessive market power in the digital space, taking a European perspective on practices that might unfairly disadvantage European companies and innovation.
The Commission will no doubt embark on this feat guided by Europe’s long-standing values and principles, enshrined in the acquis communautaire: the freedom of thought and of expression, the principles of open and fair competition, as well as the key principles of the eCommerce Directive.
On behalf of the European mobile and fixed telecom operators, the GSMA and ETNO propose that the Commission consider the following recommendations when designing the DSA:
Review of the eCommerce Directive
• Put the European single market and European values at the core of the review by maintaining the main principles enshrined in the existing eCommerce Directive: country of origin; limited liability for targeted online intermediaries; prohibition of general monitoring obligations;
• Recognise the diversity of the digital ecosystem and promote regulatory intervention in areas where specific harm is recognised: not all
platforms are the same;
• Direct the regulatory focus to those hosting services that play an ‘active’ role in the dissemination of content online or share such
content with a broad audience or have the technical means to swiftly identify and remove users’ specific content on a piece-by-piece basis;
• Be mindful of internet freedoms by emphasising the use of “notice-and-action” at the hosting providers’ level for the removal of illegal content, while limiting the use of “blocking injunctions” at the network level and using it as a last resort;
• Consider further strengthening and harmonising the use of reliable notifiers, such as trusted flaggers, to identify the presence of illegal content online and ensure a more effective enforcement against such content;
• Ensure legal certainty, proportionality, and the preservation of fundamental rights by applying a clear distinction between illegal content and content that is harmful, but legal. In our view, the DSA is not the appropriate tool for addressing harmful content.
Regulation of Digital Gatekeepers
• Support new measures to promote fair competition in digital markets. Where competition law is insufficient to provide effective solutions to problems arising from entrenched and durable dominance in digital markets, it should be complemented by a new ex-ante regulatory framework tailored to large online platforms acting as gatekeepers.
• Advocate for a dynamic case-by-case approach: a careful and targeted approach should identify the digital gatekeepers that must be subject to ex-ante regulation, testing them against specific criteria that reflect the competitive dynamics of each digital market.
• Support targeted, proportionate, and dynamic remedies: a framework based on a case-by case assessment should entail the application of specific remedies, which allow for dynamic adjustments addressing harm and market structures. Proportionality will be key in reflecting the nature and the gravity of the specific threats to competition and to contestability in a targeted market.
• Consider introducing a list of prohibited unfair commercial practices that digital gatekeepers should always be prevented from deploying, as a complementary safeguard against the most frequent and harmful abusive behaviours.
• Promote harmonisation through supervision and enforcement of the new rules at the EU level: large online platforms operate in global ecosystems and competition concerns arising in digital markets have an important cross-border dimension. In parallel, ensure coordination of authorities across Member States.
For more information please contact:
Senior Manager, EU Affairs, GSMA
Pierantonio Rizzo is a Public Policy Manager for the Policy & Regulatory Affairs team at GSMA Europe, working primarily on Consumer Protection, Platforms, Copyright and Cybersecurity issues. In his role, Pierantonio creates public affairs strategies for the membership and represents the GSMA towards the EU Institutions.
Prior to joining the GSMA in 2017, Pierantonio worked at the European Parliament, where he followed the workstream of the IMCO and AFET Committees. He began his career as an articled-clerk in an Italian law firm and then moved to Brussels to intern for Rohde Public Policy, a public affairs consultancy firm.
Pierantonio holds a Masters of European Affairs from the Catholic University of Paris and a LLM from the University of Bologna, during which he had an exchange program with the Université Paris II Panthéon-Assas. Pierantonio speaks Italian, English, French and is currently learning Spanish.