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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 8 May 2020 Related reading: EDPB adopts opinions on draft UK adequacy decision



Greetings from Brussels!

I have been keeping an eye on the upcoming Digital Services Act, the EU executive’s bid to regulate the online ecosystem with an aim to create a more level-playing field between the platforms and traditional media outlets. The European Commission is preparing to launch a consultation later this month on the DSA, which will propose new rules impacting companies' online operations. In tandem, the European Parliament is preparing its own list of considerations for the legislation. DSA provisions would set new rules for certain types of online content, including but not limited to harmful content and political advertising.

Plans for the DSA are being fiercely debated by the European Parliament and its committees. For example, Legal Affairs Committee German MEP Rapporteur Tiemo Wölken has been vocal through a recent Draft Report. The message is clear: Digital reality has evolved. He notes that digital business models, technology and social expectations have all changed dramatically since the current legal internal market framework for such services was established back in 2000.

Sound familiar? The very same evolutionary argument was abounding when the European Commission commenced its review of the 1995 data protection directive, eventually giving birth to the GDPR. Wölken is also of the view that the commission should use the DSA to limit the collection of user data for targeted online advertising.

Interestingly, the report suggests that a small number of dominant online platforms have been enjoying relatively unhindered market dominance over competitors. He questions the level of regulatory oversight to address the overall impact. As a side note, in an address to the European Parliament’s internal market committee Monday, Commission Executive Vice President Margrethe Vestager stated that a "new competition tool" could be introduced as part of the new DSA.

Among the recommendations cited, the Parliament report calls for the legislation to foresee more robust regulation over targeted advertising with clear limits and guidance for the collection of data for such purposes, particularly where user datasets are tracked on third-party websites. It also calls for content-hosting platforms to give users the choice of whether to consent to the use of targeted advertising.

In respect to content moderation, there is a call for the DSA to cater to provisions to strengthen the response to illegal content through procedural frameworks including judicial redress. It goes as far as calling for a European agency to monitor and enforce organizational compliance with penalties. There seems to be an increasing trend suggesting the creation of additional EU regulatory agencies. I am referencing the recent media coverage for one to deal with cross-border enforcement of the GDPR and privacy rulings — although there are manifestly mixed views on that front.

In a related development, Facebook announced its first Oversight Board members. For context and as a reminder, the Oversight Board was created to help the tech giant answer some of the more difficult questions around content moderation versus freedom of expression online — what needs removal, what can stay up online and why. Importantly, the board is independent in its deliberations. Its decisions about whether to reverse or uphold Facebook’s content decisions are binding.

All said and done, the hope here in Brussels — despite the current pandemic — is that the commission can stand by its legislative commitments and present the DSA before the end of 2020, although there is also the suggestion that the plans could be postponed until early 2021. Either way, the successful adoption of a new DSA would likely increase the Brussels ripple effect beyond the borders of the EU, extending its influence in the digital space globally.


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