June 8, 2020

The EU Commission has launched a public consultation on the Digital Services Act, which was announced back in February in the Commission’s Communication “Shaping Europe’s Digital Future”. The consultation seeks to gather views, evidence and data from people, businesses, online platforms, academics, civil society and all interested parties to help the Commission shape the future rulebook for digital services. The consultation covers issues such as safety online, freedom of expression, fairness and a level playing field in the digital economy.

The Commission explains that the current regulatory framework for digital services dates back twenty years. It helped the growth of European digital services, but the Commission says that it “does not give answers to many of today’s pressing questions on the role and responsibility of online platforms, especially the largest ones”.

The Commission says that Europe needs a modernised regulatory framework to reduce the ever-increasing regulatory fragmentation across Member States, to better ensure that everyone across Europe is protected online as they are offline and to offer to all European businesses a level playing field to innovate, grow and compete globally. Users’ safety as well as the respect of their fundamental rights, in particular their freedom of expression, must be systematically guaranteed.

The consultation covers two strands:

1. E-commerce Directive (2000/31/EC): the first set of rules in the Digital Services Act would relate to the fundamentals of the Directive, in particular the freedom to provide digital services across the EU single market in accordance with the rules of the place of establishment and a broad limitation of liability for content created by users. Building on these principles, the Commission says that it aims to establish “clearer and modern rules concerning the role and obligations of online intermediaries, including non-EU ones active in the EU, as well as a more effective governance system to ensure that such rules are correctly enforced across the EU single Market while guaranteeing the respect of fundamental rights”; and
2. Level playing field: the second measure would address the issue of the level playing field in European digital markets, where currently a few large online platforms act as gatekeepers. The Commission intends to “explore rules to address these market imbalances, to ensure that consumers have the widest choice and that the EU single market for digital services remains competitive and open to innovation”. For example, the Commission might use additional general rules for all platforms of a certain scale, such as rules on self-preferencing, and/or tailored regulatory obligations for specific gatekeepers, such as non-personal data access obligations, specific requirements regarding personal data portability, or interoperability requirements.

In addition, the Commission is consulting on other emerging issues related to online platforms, such as the opportunities and challenges that self-employed people face in providing services through online platforms.

Respondents are invited to submit their responses by 8 September 2020 in all official EU languages. The consultation will inform the Commission’s proposals for the Digital Services Act package, expected to be released at the end of 2020. To read the Commission’s press release in full and for a link to the consultation, click here.