ACT Perspectives on the Digital Services Act
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Commercial broadcasters are at the heart of Europe’s media landscape as producers and distributors of European original content and news. Commercial broadcasters have embraced the digital environment providing new services, formats and content to meet growing European demand for quality content. As European audiences move online, so have broadcasters with new and diversified offerings; establishing and working with digital services, large and small, to create new and innovative ways to reach viewers.
Yet in grasping the opportunities of online, broadcasters have faced challenges to protect their content online and grow and develop new services as well. These impacts have been magnified by the COVID-19 crisis. Infringement of IPRs, continues to drain Europe’s creative and cultural ecosystems’ growth and jobs. The issue of content piracy needs to be addressed with better enforcement tools and liability standards across all digital services. Tackling the specific competition issues emanating from large online platforms means addressing exclusionary practices and exploitative behaviour that inherently limits consumer choice and innovation. In parallel, the proliferation of disinformation and other harmful content, particularly impacting minors, has demonstrated the need for more measures on online platforms to protect democratic discourse and public safety.
Building on existing instruments such as the Audio-Visual Media Services and Copyright Directives, the Digital Services Act (“DSA”) is an opportunity to strengthen and complete the core value at the heart of Europe’s regulatory and competition regimes. The ‘holistic’ approach taken by the Commission is welcome as it seeks to address the multi-faceted nature of the issues at hand. In so doing, we encourage the Commission to consider the impacts that illegal/harmful activities have on Europe’s ability to sustain cultural diversity and media pluralism. For broadcasters this can only be achieved by delivering a pro-recovery set of measures with high liability standards to ensure the protection/value of AV content while fixing the fact that online platforms are not playing by the same rules as their competitors. This means new rules to keep their services safe, legal and pro-competitive to establish a level playing field that sustains investment in media pluralism & cultural diversity to the benefit of all Europeans. Finally, the Digital Services Act should not lead to a situation where platforms have an oversight role over broadcasters’ content, which is already heavily regulated and controlled by media regulators under the AVMS Directive.
We look forward to working with the European Commission to ensure a successful DSA. Our views on how this success can be achieved are set out in the paper downloadable below and summarised in the following areas:
E-commerce review: an evolution not a revolution
- The DSA should retain the fundamental principles of the ECD (active/passive distinction, specific monitoring) with targeted solutions to tackle specific illegal/harmful activities whilst being coherent with sector specific regulations, existing CJEU and national case law.
- Maintain, build on, but do not undermine, the active/passive distinction. The limited e-Commerce liability regime is meant for passive services and should not apply to active ones.
- The Good Samaritan is a Bad Solution. Exempting all service providers, including active ones, from liability under certain conditions will not deliver a safer online environment.
- General monitoring ban allows for specific monitoring obligations that should be upheld. These specific obligations are rooted in the e-Commerce directive and do not stand in the way of protecting freedom of speech.
Illegal content: fighting piracy means effective, transparent & cost-effective policies/tools applied across all platforms within and beyond the EU
- Piracy continues to drain the creative ecosystem, with a spike noted during Covid-19 crisis.
- The DSA should reinforce the liability regime to deliver effective enforcement and technical measures across all platforms.
- Automated content management tools are required to achieve specific monitoring mandated by the e-Commerce directive. These tools work and do not conflict with the general monitoring ban. So-called “overblocking” remains extremely marginal. The core issue is lack of transparency (notably on algorithms), unequal implementation and the burden on rightholders of operating different tools on different platforms.
- Enforcement policies need more robust rules to effectively protect content. This requiresexpeditious and transparent removal procedures, stay down measures across active and passive players and treating IP rightholders as trusted flaggers based on objective criteria.
- Enforcement tools can help lower cost and speed up judicial redress with the possibility of issuing dynamic injunctions, catalogue or repertoire-wide injunctions, and including hyperlink directories in scope.
- Stepping up action at international level to ensure access to WHOIS information is restored, Know Your Business Customer protocols are in place and ongoing measures are developed to identify/tackle illegal offers from third countries.
Harmful content online: stepping up obligations on large online platforms to tackle online disinformation, political advertising & protection of minors
- The Covid-19 crisis has accelerated and magnified the impact of disinformation online. There is an urgent need for effective instruments, transparency and oversight.
- An overall comparable set of rules for platforms is essential to ensure symmetry of regulation applying to media providers and online platforms/social media to ensure equal protection for Europeans, including the most vulnerable ones, when accessing content online.
- Co-regulation is the logical next step to plug the gaps identified in the Code of Practice on disinformation and ensure independent regulatory oversight. This means transparency and access to data obligations, clear KPIs, sanctions, and a structured dialogue involving trusted media and civil society to assess progress/next steps.
- The effective protection of minors should ensure high and enforceable standards including fines or loss of license as is the case for broadcasters. The current systems used by broadcasters are good examples of cooperation at national level with regulators.
- Rules for online political and issue ads advertising are required to ensure greater transparency and limit practices that erode the democratic discourse.
Gatekeepers: ex ante rules are needed to tackle uncompetitive practices by large online platforms and deliver a level playing field, particularly regarding data and advertising markets
- The definition of gatekeeper platforms must be well scoped to avoid adding regulation on services/companies that are already subject to regulatory scrutiny.
- In certain circumstances, competition policies and tools have proven to be too slow or ineffective at providing remedies. An approach that tackles practices of platforms with significant market power is welcome.
- The specific ex ante provisions are an opportunity to ban a range of ongoing anticompetitive practices and discriminatory treatment
- Unfair competition in the online advertising market requires a regulatory toolbox setting prohibitions and obligations to large online platform companies with gatekeeper role.
- Additional rules granting access to data generated from the use of the broadcasters’ services or content on some large online platforms are needed.