Today at COREPER the EU deputy permanent representatives have adopted a general approach on the Digital Markets Act Proposal. The European Publishers Council welcomes the swift progress made by the Council on flagship legislation to control the digital gatekeepers but warned that some key improvements are still required to remove loopholes, and to ensure that the Digital Services Package is truly future proof and enforceable.
EPC has been highlighting the problems arising from the behaviour of the gatekeepers for years, hence it is crucial to get the proposal right and show the way for global standards for gatekeeper regulation. Companies like Google, Apple, Facebook and Amazon are important gateways, holding access to Europe’s media and publishers’ user bases, whether it be through search engines, social networks, advertising services, web browsers, operating systems, app stores, online marketplaces, video sharing platforms, voice assistants or audio platforms.
The obligations enshrined in Articles 5 & 6 should be made watertight especially when it comes to preventing harmful self-preferencing, as shown in the Google Shopping case, data bundling and certainty in creating fair and non-discriminatory conditions of access to core platform services.
Angela Mills Wade, EPC Executive Director said that “it should be made clear that gatekeepers cannot continue their harmful practice of combining and using, for their own purposes, data sourced from their core platform services with personal data collected from sources and / or services where they are present as third parties, like a publisher’s site. This is to ensure that the DMA will put an end to gatekeepers’ practices that oblige end, and business users to agree to any practices as a precondition for the use of the gatekeepers’ core platform services. By pushing users into consenting to their data processing operations not only creates a loophole from data combining prohibitions but undermines the integrity of the GDPR by flouting the fundamental principle of consent - that it should be informed and freely given. No other company has such leverage in the market. These practices should not continue”.
Europe must not fall short on key obligations on access to data but also be sure to outlaw self-preferencing of gatekeepers’ core platform services (CPS) and their tying and bundling that come with unfair conditions for both users and businesses
The EPC welcomes measures to deal with harmful conducts by the app stores, but an amendment to extend this article 6(1)(k), is a prerequisite in ensuring that the DMA will be a comprehensive instrument that not only effectively addresses harmful conducts of the gatekeepers, but which also applies fair and non-discriminatory general conditions of access for business users to all designated gatekeepers and their core platform services, and not just to app stores which is currently the case.
Angela explained that: “because gatekeepers play such a key role in the visibility, findability and distribution of press and media content across the internet, especially via the gatekeeper search engine and online social networking service which are unavoidable gatekeepers for publishers, the draft’s narrow focus on the app stores is a fundamental, central weakness in the proposal. All core platform services should be subject to fair conditions, especially search engines and social networks.”.
Finally, the EPC strongly believes that it is important that the DMA obligations are not restricted to the conduct of a particular gatekeeper, but are sufficiently flexible to be applicable to existing, and most importantly, similar future conducts of existing and emerging gatekeepers. We welcome the improvements on this front, but as Angela points out: “Web browsers for their role as gateways and part of gatekeepers’ ecosystems, should also be part of core platform services. The same should happen for the Digital Voice assistants which are the new gateways between end-users and businesses and are gaining a more and more significant role as the entry point for whole markets, a point that the Commission has recently recognized in its competition sector inquiry into the consumer Internet of Things (IoT)”.