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Europe takes on the internet giants

THE EUROPEAN Commission late yesterday launched its proposals for a Digital Services Act (DSA) and another measure that would take on the power of the internet giants - Google, Amazon, Facebook, Apple, and Microsoft (GAFAM).

The DSA proposes to make internet services more responsible for their activities. A key feature is a revision of the EU's e-commerce Directive, which the internet giants used to claim that all their activities were a "mere conduit" for information, and thus that they should not be legally liable for the "content" their users transmitted any more than your post-person should be liable for delivering a copyright-infringing work to your door. Since that was passed in 2000, of course, their activities have expanded hugely into what we'd recognise as publishing.

It is possible that the eventual Regulation will strengthen the hand of journalists and other authors needing to enforce our authors' rights in the EU. Its intention is to set a world standard for regulating GAFAM - including in the US, where Congressional reports have recently expressed a surprising amount of concern about their anti-competitive behaviour.

A separate measure, the Digital Markets Act, seeks to update competition law (that is, anti-monopoly law) to deal with the rôles of GAFAM as "gatekeepers" in their respective patches - for example Apple's stranglehold over apps that will run on Macs and iPhones.

The European Federation of Journalists, of which the NUJ remains a key member, will continue to press for the key principles that it set out in its submission to the Commission over the summer.

  • Journalists have seen an increase in practices such as dissemination of hoaxes and disinformation through social media, chats and certain traditional media about political affairs, conspiracy theories, migrants and coronavirus treatment. The pandemic has caused a general uncertainty, which has resulted in even quicker spread of false information. Platforms need to be held responsible for minimising the impact of such practices and to e prevented from profiting from them.
  • Research suggests that dissemination of such content is actively driven by opaque algorithms that are designed to maximise revenues from sales of advertising: content that maintains users' attention and enables the platforms to gather more data about users, to profile them and target yet more "content" accordingly.
  • The EU's digital leadership provides a once-in-a-generation opportunity to address the root causes of this rapid dissemination and amplification of harmful content, and to rebuild trust in the online information environment.
  • Legislation on platforms' responsibilities and legal liabilities should be consistent and general. To introduce special-purpose measures to deal with, for example, terror-promoting disinformation while doing nothing to address matters such as defamation, harassement of journalists or infringement of authors' rights would be to risk further weakening respect for the law itself.
  • New legislation at EU level must respect fundamental rights and support pluralism and diversity (including support for smaller language groups). Interventions by public authorities must be proportionate to the threat posed by disinformation, minimising any damaging effect on freedom of expression.
  • In particular, though we understand why anonymous posting of disinformation may be seem as a problem, the ability to distribute (valid) information anonymously is absolutely essential to the protection of journalists' sources, which is in turn essential to the production of accurate, professionally-edited news information.
  • Any adequate response to disinformation must build on close collaboration between those on the front-line fighting dis- and mis-information. One of the reasons that online platforms are so effective at spreading misinformation and disinformation is their refusal to license reporting by professional journalists, which weakens the eco-system that supports independent, professional journalism.
  • It is important that once infringing works are taken down they stay down. Journalists and other authors should no longer have to play "whack-a-mole" with infringing copies of our work, for example.
  • Service providers established outside the EU should also be in the scope of the future DSA package. This is in line with other legal instruments and regulatory fields, such as the General Data Protection Regulation, the Platform-to-Business Regulation and competition law. The DSA should cover non-European providers who offer digital services to users in the EU.
  • Freedom of expression does, however, not extend to robots, and it is deeply questionable whether it should extend to "bad-faith" expression. Freedom of genuine expression can only be served by ensuring that professional, independent work is presented prominently, safely and with equitable remuneration.

As always, we face a long and winding road to an eventual EU law, with a UK version even further away. Back in October, a leak of Google's lobbying plans to French magazine Le Point suggested just how winding it'd be, with its talk of setting parts of the Commission (the EU civil service) against one another and of continuing to fund fake grass roots ("astroturf") groups and allegedly-academic "research".


17 December 2020

Texas and nine other US states on 16 December filed a case against Google for anti-competitive behaviour (it's an "antitrust" lawsuit in US legal jargon). They allege, among other things, that the internet corporation colluded with Facebook to fix the online advertising market - which has devastated newspapers. Reuters adds that online publishers including Genius Media Group and The Nation in a separate antitrust lawsuit seek compensation after "they lost revenue because of Google’s dominance in online ads".

These cases follow a lawsuit by the US Federal governnment against Google on 21 October and a similar case against Facebook by the Federal government and several states on 10 December, which CNN reported could lead to its break-up.