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DSM Watch: Online platforms – Commission communication to be the next major milestone on the road to a Digital Single Market

28 April 2016
The EU Commission looks set next month to release a new communication providing policy guidelines as to the direction it wishes to take for on-line platforms. While the official Communication is scheduled to be released in mid-May, Statewatch.org has just made available a draft version (tentatively dated 25 May) entitled "Online Platforms and the Digital Single Market - Opportunities and Challenges for Europe". The draft communication addresses a number of key issues and gives a fairly complete idea about the direction that the EU DSM strategy is taking for on-line platforms, OTTs, ISPs, E-Commerce, and the overlap between those sectors.

While more in-depth analysis will follow on this and other Hogan Lovells weblogs, here is a brief summary of the draft Communication's major points:

  • ISP safe harbour -- The public consultations so far have "showed strong support for the existing principles of the e-Commerce Directive", says the Commission. Whilst some expressed the need to clarify the scope of the safe harbour, the Commission "intends to preserve the existing liability regime" for ISP in relation to user-generated contents (UGC).
  • Level playing field principle - The Commission acknowledges that some Over The Top players have been competing with traditional broadcasters in providing audio-visual content to similar audiences. In order to apply the same rules to all relevant actors, the Commission seems to be considering a reduction in scope of existing regulations, making traditional broadcasters' obligation more similar to that of OTT.
  • Sectorial approach to video sharing platforms - The Commission thinks that different types of platform may require different actions and regulatory regimes. In this regard, the Commission is considering to adopt specific steps to protect minors, tackle incitement or hatred, and ensuring fair allocation of value generated by distribution of copyright-protected contents on-line.
  • Self-regulation and soft law - All the DSM initiatives listed above will fully comply with the ISP safe harbour under the E-Commerce Directive, the Commission says. Accordingly, the Commission seems likely to opt for guidelines and self-regulatory activities so that ISPs and OTTs collaborate in tackling harmful contents and to create a better on-line environment.
  • Improving B2B relations - During the public consultations, businesses seem to have raised a number of concerns as to their relation with platforms. In particular, they reported issues as regards terms and conditions agreed with platforms, transparency of platforms' actions, and platforms' capacity to influence access to the market. The Commission is gathering further evidence in this respect and will consider whether further actions are needed by spring 2017.
  • Opening the on-line environment - The outcomes of public consultations' stress the need to improve platform openness and interoperability, as well as users' chances to switch platforms and providers in the easiest fashion possible. This point, which the Commission considers key for a number of fields (e.g., Internet of Things), could require adopting common standards and actual promotion of open regimes to facilitate switching and portability of personal data among different online platforms and cloud services.

Overall, the draft Communication states that there is "no compelling case for general ex-ante regulation of online platforms". Instead, it appears the Commission would prefer a soft approach, aimed at achieving a number of important targets via a greater involvement of the platform industry and the promotion of self-regulatory measures. While the Commission is currently gathering further evidence to base future actions, the timeline seems to include (i) updated Audiovisual Media Services Directive, to be adopted alongside the final version of the leaked draft Communication (i.e., May 2015); (ii) a Copyright package, scheduled for the next Autumn; and (iii) a multi-stakeholder forum to assess effective self-regulating measures, that will take place before the end of 2016.

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