Digital Services Act, Brussels Effect and the Future of the Internet

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The Brussels Effect is an interesting concept coined in 2012 by Ana Bradford, a Finnish-American professor at the Columbia Law School. The gist of the concept is this: Europe may not be an economic or innovatory stronghold comparable to the United States or China, but it excels in producing and imposing global regulatory standards to a plethora of business domains: from the GDPR in the digital economy sector to the climate change agreement. EU is leading by example.

Bradford’s intervention has twin aims: on the one hand, she presents an accessible narrative for understanding complex notions like regulation and governance. On the other hand, she attempts to create a positive vision for the European Union; to pat Europeans on the back and console them by, essentially saying, you matter too.

Some have criticised Bradford’s concept and the EU’s stance as “regulatory imperialism,” arguing that the EU has been making it extremely costly for others to keep up – especially countries in the Global South – and that European values and processes are not universally applicable. Others have blamed the EU for state protectionism, arguing that the bloc has nothing to show in terms of innovation and instead focuses on hindering others.

Nevertheless, as Bradford acknowledges, the global effects of European legislation have mostly been inadvertent than deliberate and strategic, until very recently at least. In other words, European policymakers found themselves in a very privileged position of exerting global regulatory influence only after the narrative of the Brussels Effect enabled them to be so.

On December 15 2020 (after a series of postponements), the European Commission is set to publish the long-awaited Digital Services Act (DSA). It will replace the eCommerce Directive, a 20-year-old framework that pretty much shaped the way the Internet has functioned on this side of the Atlantic for the past two decades. Even the name ‘eCommerce Directive’ now sounds obsolete; like that boomer uncle at family dinners pitching ideas on the next big “Internet thing.”

So what can we expect from the DSA and why should we care? Even though it’s not possible to offer a complete answer at this point prior to the DSA’s publication, it is possible to review its most important issues at stake.

Social Media Platforms

The DSA could change the way that content moderation (i.e. what stays and what goes) functions on online platforms. The DSA could set transparency obligations on how platforms recommend content to users, how they decide which material to remove, and how online advertising works.

A large part of the criticism relating to the GDPR framework of 2018 was that it was very costly for Small and Medium Enterprises (SMEs) to comply. Similarly, many critics have been vocal regarding possible regulations on content, arguing that only major corporations will be able to keep up with such demanding legislation. For their part, DSA policymakers and supporting politicians, have argued that there will be “asymmetric measures” (following the asymmetrical power relations that make the EU so disjointed). In other words, stricter and different rules for larger platforms.

These measures will mainly aim at reining in platform power in terms of market power and online content. The former will likely seek to put in place some restrictions concerning “killer acquisitions” (i.e. when larger corporations buy start-ups, which in the long-run may hurt innovation) and stronger taxes.

The latter will most likely seek to combat a myriad of problematic and unlawful content issues: political advertising, hateful and defamatory content, incitement to violence, disinformation (deliberately disseminated deceitful information) and misinformation (misleading or false information without necessarily aiming to cause harm).

Media and Press Freedom

Moreover, the European Commission will set out to put in place protective mechanisms as regards press freedom and journalistic independence; according to the European Centre for Press & Media Freedom one of the burgeoning ways of trying to suppress journalists is “gag lawsuits” or “Strategic lawsuits against public participation” (SLAPPs): lawsuits that are “brought forward by powerful actors to harass and silence those speaking out in public interest”.

In addition, the physical and digital harassment of journalists in EU state-members continues to be a real problem, further undermining freedom of expression.

However, one of the most telling blind spots of the EU Commission’s plan, is the obsession over foreign interference (mainly Russia); this is not meant to downplay the existing threat but rather to emphasise the fact that many of the threats described by the EU Commission actually exist within EU’s ranks. For instance, in Greece, media pluralism is severely under threat, with state funding excluding or side-lining critical media, while reported incidents that threaten media freedom has increased by 35% in the last two years. Therefore, we should continue pushing the EU Commission and the EU Council to adopt similarly strict measures for state-members.

Research and Transparency

One of the most damning issues of the so-called platform economy is the lack of transparency at many levels. First of all, as many critical voices have repeatedly pointed out, the algorithmic processes behind automated technologies, like the recommender system or personalisation mechanisms, remain vastly opaque and filled with racial biases.

Same goes for the content moderation system, which operate in the shadows and without clear guiding principles, exacerbating the already worrisome problem of problematic content online.

Ever since the Cambridge Analytica scandal, researchers have been having real trouble getting their hands on useful data from social media platforms; only Twitter allows for a limited yet valuable access to its data. Most other major platforms either prohibit it or only share their data with privileged research institutions like the Harvard University.

Interestingly, last week, the Social Science One project, which had access to precious Facebook data, lost its European advisory committee of eight people, who lamented the initiative for not doing enough to enable innovative research and equal access to data.

Lobbying and the Digital Gatekeepers

Big corporate companies could not have stayed passive in such a big stakes game. Last month, Le Point unveiled a leaked Google document, which described in excessive detail attempts to curb strict EU regulation by targeting Thierry Bretton, the European Commissioner for the Internal Market, who has been extremely active in discussing with “Big Tech” CEOs.

Last week, a lobbying watchdog, the ALTER-EU alliance, sent a letter to top EU Commissioners warning them about increased lobbying attempts by big digital platforms, while also pointing the finger at the EU Commission for holding a meeting with “Big Tech” CEOs behind closed doors and without the participation of human rights advocates or civil society’s representatives.

While the future remains uncertain regarding most parts of our lives, one thing’s indisputable: the post-COVID19 world will see the digital more embedded to our lives. The grace period of Silicon Valley-based platforms is over. While it’s certain that the neoliberal doctrine of the EU will not challenge the deep-rooted problems of platforms, as that would first require taking a good look at many other domains of social and economic life – like the welfare system or gender inequalities – it will definitely shake them up a bit.

We should not forget that large private corporations are but the tip of the iceberg; the foundation which has enabled their ubiquitous growth persists and will most likely survive the DSA with minimal damage. Therefore, instead of championing a “Brussels effect” we should see to it that a safer, diverse, collaborative and more creative Internet is developed; maybe a “Citizen effect” is what’s needed the most now.

For more posts by Charis Papaevangelou, see https://www.citizenerased.euShareTweetShare

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