The Digital Single Market project is the flagship of the Junker presidency of the European Commission. Hugely ambitious in scope, the battle to break down barriers to digital access and trade across the EU has seen the launch of over 35 major legislative proposals. To give the Commission its due, it has probably achieved more than some cynics thought possible in a relatively short amount of time, but the project is by no means complete.
This year has seen some notable successes: the revised AVMS Directive, the Geo-blocking Regulation, and the Regulation on the free flow of non-personal data, are some of the new laws on the statute books and the new Copyright Directive is nearing completion. As the Junker presidency draws to a close and elections loom in May 2019, question marks remain over the outstanding elements of the project which include tax reform, the ePrivacy Regulation, and consumer protection (see more on that in consumer protection section).
Geo-blocking Regulation
The Geo-blocking Regulation entered into force on 3 December 2018. Geo-blocking is where companies restrict online products or services to customers, largely based on the customer's location, as a means of controlling the price, distribution and the terms on which the products or services are sold. This has the effect of creating artificial borders within the European Union, where certain customers are unable to access certain products that other European consumers enjoy, against the Single Market Principle. As a result of the impact this has on free access to goods across the EU, the Geo-blocking Regulation was adopted, with the objective of preventing unjustified geo-blocking and other discriminatory practices based on nationality, place of residence and place of establishment. Read more here.
Revised AVMS Directive
The revised AVMS Directive was published in the Official Journal at the end of November 2018. It must be transposed into national legislation by 19 September 2020. If the UK exits the EU under a transition period, then it is likely to implement the Directive but the government has issued a no deal technical notice stating, among other things, that the country of origin principle will no longer apply to services under EU jurisdiction which are broadcast into the EU in a no deal scenario.
Draft Copyright Directive
As part of its Digital Single Market strategy, the EU Commission reviewed the EU's digital copyright laws and is seeking to shift the balance in favour of rights holders. The Directive is nearing the end of the legislative process. While the European Parliament initially voted down the Directive, it subsequently agreed around 200 changes to the original proposal. Two of these have received particular attention: Article 13 (platform liability / upload filters) and Article 11 (new online press publication right). The Directive also contains a number of important provisions relating to data mining, revenue sharing, rights of creators, automated image referencing and protection for sports event organisers. Read more.
Draft EC Regulation to promote fairness and transparency for business users of online intermediation services
In January, we reported on a draft EC Regulation which is intended to require enhanced transparency around search result rankings and in platform terms and conditions, and to ensure effective redress for users. The Regulation is clearly aimed at the tech giants and will catch third party e-commerce marketplaces like Amazon marketplace and eBay, App stores like GooglePlay and Apple App Store, social media for business, for example, Facebook pages and Instagram, and price comparison websites and tools.
Businesses which rely on third party marketplaces and search ratings are likely to welcome the enhanced transparency requirements and redress mechanisms.
Online disinformation
'Fake news' and online disinformation has been a big theme of 2018 and this is only likely to continue. The EC is not alone in trying to find a solution to the problem; Member States including the UK are all looking at this (the Law Commission published proposals to reform online abuse laws in November and the DCMS Commons Committee and House of Lords Select Committee have produced reports).
In October, we reported that leading social media platforms and ISPs, including Facebook, Google, Twitter and Mozilla, signed up to an EU voluntary Code of Practice on Disinformation. "Disinformation" is defined in the Code as "verifiably false or misleading information which cumulatively:
- Is created, presented and disseminated for economic gain or to intentionally deceive the public; and
- May cause public harm, intended as threats to democratic political and policymaking processes as well as public goods such as the protection of EU citizens' health, the environment or security.
The notion of "Disinformation" does not include "misleading advertising, reporting errors, satire and parody, or clearly identified partisan news and commentary, and is without prejudice to binding legal obligations, self-regulatory advertising codes, and standards regarding misleading advertising".
The purpose of the Code is to identify actions the signatories could put in place in order to address challenges relating to disinformation.
