Quo Vadis, EU (Law)? - 2022

Regulating Online Platforms in the EU

During the pandemic, the need of sensibilization about new technologies significantly increased since online platforms have become more famous, more important, and especially more powerful. The issue grows even more problematic considering that, nowadays, online platforms are employed by individuals to exercise some of their fundamental rights – such as freedom of expression. In tackling this topic, some important aspects to consider are which pieces of legislation have been enacted in the past by EU institutions, what can be classified as an online platform and whether it would be possible to balance all the interests at stake under a constitutional point of view. To give proper answers to these questions, the Bocconi Faculty of Law invited as a guests Prof. Alexandre De Streel (University of Namur), Prof. Alina Tropova (Nottingham University) and Prof. Oreste Pollicino (Bocconi University).  

The Digital Markets Act 

Prof.  De Streel started his speech by pointing out that the main reason behind the current regulatory push is the concentration of economic, innovative, and informational powers among some happy few. Most of the added value is captured by few innovative firms that have become more powerful, less transparent, and increasingly difficult to regulate. This led to a loss of autonomy of citizens, business users and States. Consequently, a need to take control back emerged: in particular, this need has been firstly pursued by the EU with the Digital Markets Act (DMA), about contestability and fairness. 

Prof.  De Streel’s argument was that the Digital Markets Act can be transformative in Europe. To deepen this concept, he went further analyzing the objectives of the Act, which can be drawn as:

i) market contestability, pursued by lowering entry barriers and creating new opportunities;

ii) fairness, pursued by ensuring balance between right and obligation of business users and regulated gatekeepers;

iii) internal market, in order to achieve maximum harmonization.  

However, the Digital Market Act has had some difficulties of enforcement. Size, global reach and diversity of digital gatekeepers, large informative asymmetry between platforms and enforcement authorities, complexity and innovation are some of the DMA’s most significant problematics that make its enforcement not obvious at all. How can these problems be solved? Prof.  De Streel’s main take on this was that cooperation is the key. The enforcement must be participatory: platforms, national authorities, national courts, business users and end-users must cooperate with the Commission, which is the main authority in charge and has to orchestrate all the actors. Accordingly, the revolution must be grounded on traditions, and it will not bring outstanding results in the short term, because of the steep learning curve. On the other hand, in the long term, starting from a permissionless regime, it is possible to reach a deeply regulated environment.

The Digital Services Act 

Prof.  Tropova’s speech focused on the successive act adopted by the EU after the DMA: the Digital Services Act (DSA). It is an enormous document which updates the e-commerce directive and whose aims are to guarantee a safe, predictable, and trusted online environment and to facilitate innovation and fundamental rights protection. The act draws a pyramidal structure of the online platforms it is addressed to. The bigger category is represented by intermediary services, followed by hosting services (where the data are stored) and online platforms, which are a subcategory of hosting services that don’t only store data but also disseminate information to users (i.e. Twitter). Finally, the last category is represented by very large platforms. When an online platform falls under the scope of application of the DSA, it is subjected to the obligations imposed by it. The real novelty of the act is the obligation of due diligence imposed on online platforms and the intensity of the responsibility varies according to the category the platform falls within. In a nutshell, the bigger a platform is, the wider its responsibilities are, and therefore the more are the requirements it must comply with. 

However, being the DSA a horizontal piece of legislation, which co-exists with legislations revolving around specific services, the coordination of this entire area of law can represent a problematic issue. In conclusion Prof.  Tropova agreed with Prof.  De Streel on the necessity of increased cooperation. Indeed, acts must be combined since fragmentation in this area is unavoidable given its complexity and innovative capacity. 

Global challenges posed by online platforms

Prof.  Pollicino then took the floor to analyze the matter focusing on its global dimension. He initially wondered whether online platforms are taken away from the constitution and his opinion was that it depends on whether individuals have the possibility to enforce their fundamental rights against online platforms or not. 

The approach is horizontal since some platforms have adopted a business model that pursues the creation of a community of ideas. This directly impacts the constitutional framework, raising some issues related to fundamental rights – especially to free speech. The problem has a global dimension given that platforms operate all around the world; nonetheless, different cultures have different values, and therefore they adopt different approaches in trying to solve the problem. For example, free speech is a core value of the US legal system, and it can never be limited. On the other hand, in Europe, freedom of expression, despite being a fundamental right, can be limited pursuing a balance among different interests. The main question then becomes how to find the best balance in this context.

In this regard, Prof.  Pollicino explained that, even though the problem represents a novelty, there is no need for new categories when dealing with digital rights. On the contrary, a back-looking approach is necessary, leading to the application of shared principles to arising problems. For instance, technology will never be able to change the value-based structure of Europe. Indeed, during the pandemic in Europe, no GPS was used to control people, as it happened in Asian countries, because that would have been a disproportionate intrusion into the citizens’ fundamental rights.