EC Platform Proposals Cited as Possible Basis for Global Norms

The most interesting part of the DSA is "the way large platforms should address systemic risks linked to hate content and fake news, for example," emailed Winston Maxwell, Telecom Paris director-law and digital technology studies. Each must develop its own risk assessment and remedial measures to address systemic risks. Many remedial tools will involve algorithmic alerts and filters, "which raises the difficult question of whether robots can judge what content is acceptable." To ensure a balance of fundamental rights, the robot filters will have to be backed up by some sort of human review, the expert said. "It will have to be [after the fact] in most cases due to the volume of removals."

DSA would also open up large platforms' data to external research for the purpose of understanding systemic risks and the company measures' efficacy, Maxwell said. The obligations under the draft DSA address many concerns noted in a 2019 University of Chicago Stigler Center report, he said.

The EC is willing to balance competing interests, emailed EuroISPA Intermediary Liability Committee Chair Malcolm Hutty. EuroISPA is concerned however about a proposal requiring all foreign providers of intermediary services accessible from within the EU appoint a legal representative in Europe, Hutty said. "This requirement should be limited to very large platform providers." The EC's intention to clarify what intermediary service providers must do when they receive reports of illegal action is "interesting," Hutty said. ISPs want to ensure that notice and action rules for tackling illegal content online "are proportionate and not excessive."

The two pieces of legislation are likely to spark a lobbying frenzy in Brussels because of the varied interests they affect, blogged telecom consultant Innocenzo Genna. The large-tech industry "will press for a watering down of the package, while on the other hand, many traditional industries, especially commercial television, will ask for a tightening." This isn't a "US v EU match." Among the biggest supporters of stronger rules for Google, Amazon, Facebook and other major players "are many American operators, the same ones for example that have introduced antitrust lawsuits against Google," he said. Also in play is the incoming U.S. administration, which, "unlike the outgoing presidency, could take a constructive role in agreeing homogeneous rules between the two sides of the Atlantic." Expect "at least two years of negotiation," Genna wrote.

Some think the DSA and DMA appear anti-American. The U.S. Chamber of Commerce said it "seems Europe is intent on punishing successful companies that have made deep investments in Europe's economic growth and recovery" and warned the regulations won't boost European competitiveness. "The EU is shooting itself in both feet," said the Center for Data Innovation: "Restrictions based on arbitrarily defined criteria that disproportionately target large U.S. tech companies may undercut efforts to restore transatlantic relations and to cooperate in countering Chinese dominance in the digital economy." The American Enterprise Institute accused the EU of effectively trying to "make Google, Apple, Amazon, Facebook, Microsoft" and others into public utilities "in Europe with all of the typical public utility obligations and constraints but none of the rights."

Google emailed that it's concerned the legislation appears to target "a handful of companies and make it harder to develop new products to support small businesses in Europe." Facebook wants harmonized rules across Europe. The company urged the EC, under the DMA, to "set boundaries for Apple," which "controls an entire ecosystem from device to app store and apps, and uses this power to harm developers and consumers, as well as large platforms like Facebook."