European Commission Launches DSM Consultations on Online Platforms, Geo-blocking
The European Commission moved forward Thursday with its digital single market (DSM) strategy by announcing new consultations aimed at collecting public feedback on Internet platforms' behavior in the European market and geographic restrictions of content. European Commission Digital Economy and Society Commissioner Günther Oettinger pointed to the new DSM consultations Thursday as an area in which U.S. stakeholders should work with the EU to maintain their trans-Atlantic ties on information and communications technology (ICT) issues. The U.S. responses to the EU's DSM strategy have been mixed since the strategy first went public in May (see 1505060038 and 1505070053), with some perceiving the strategy as “a secret key to a Fortress Europe,” Oettinger said during a Johns Hopkins University School of Advanced International Studies event. “My message to all our friends in D.C. is clear -- don't fall into that trap.”
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The EC's online platforms consultation will explore the economic role of search engines, social media, file sharing websites and other platforms, the commission said. The consultation also will explore intermediaries' liability for illegal content, improving the EU's free flow of data and building a “European Cloud,” the EC said. Although online platforms' “emergence has been generally seen as beneficial, the way that online platforms operate raises issues that require further exploration,” the EC said. The consultation mainly cites U.S.-based platforms like Amazon, eBay and Google, though it also discusses French e-commerce website Twenga and Poland-based online auction website Allegro Group.
The EC will “need to think carefully about the implications for the economy as a whole, particularly European innovators that grow companies” in the U.S., as it conducts its online platforms consultation, Computer and Communications Industry Association Vice President-Europe James Waterworth said in a statement. “This exercise should seek to understand the positive impact that online platforms have in the modern economy. If there are problems someone will need to be more precise about what exactly they are and why they can’t be dealt with under existing law such as competition, consumer and privacy law.”
The EC's consultation on geographic content restrictions, including geo-blocking, is aimed at identifying known examples of geo-blocking that violate existing rules but fall outside existing exceptions related to copyright and content licensing practices. The consultation could result in changes to existing EU e-commerce rules and legislative proposals in the first half of 2016, the EC said. The commission said it's separately investigating geo-blocking as a matter of EU competition law. Oettinger on Thursday defended existing exemptions allowing geo-blocking, saying they helped preserve national markets for portions of the European film industry and sports programming that would find difficulty in maintaining their audience sans geo-blocking. The EC still intends to address copyright rules as part of the DSM strategy, with an aim toward harmonizing all EU member nations' rules and exceptions, Oettinger said.
Both the EU and U.S. need to address misconceptions in the DSM discussion before they become entrenched, Oettinger said, noting that he had met with executives from Apple, eBay, Facebook and Google during a two-day swing through Silicon Valley to promote the benefits of the DSM strategy. DSM can be a “win-win situation” for the EU and U.S. by providing more regulatory certainty for U.S. companies while also making Europe fit for the digital age, he said. It's important that Oettinger has been “proactive in seeking input [on DSM] from American audiences to European plans and his sensitivity to how people in the U.S. would perceive what's happening in Europe,” Wiley Rein lawyer David Gross said in an interview. “It's clear that they want to be very careful and cautious, but of course the proof will be in the pudding” of what comes out of the DSM strategy process. Several U.S. stakeholder groups have already indicated they plan to send input to the EC on the online platforms and geo-blocking consultations, including CCIA and the Software and Information Industry Association.
Oettinger's appeal for U.S. engagement on DSM came a day after European Court of Justice (ECJ) Advocate General Yves Bot called for the suspension of the EU-U.S. safe harbor agreement for transfer of personal data (see 1509230001). Oettinger emphasized Thursday that the ECJ is still deciding the case and that he hopes the European Parliament will be ready to vote on a modernized safe harbor agreement in 2016. A modernized agreement would be a “win-win situation” because it would reflect the rise of cloud computing and other changes to the ICT sector since the original safe harbor agreement was adopted in 2001, Oettinger said.