Digital services regulation proposal

While the initial objective of the European Union is to create a single European market, Europe wanted to push its market logic further by tackling the digital world. On December 15, 2020, the European Commission presented to the Council 2 proposals for regulations with the aim of regulating the digital single market: the Digital Service Act and the Digital Market Act. They aim to better protect consumers and their rights online and to promote transparency on the part of digital companies. The question now arises: how have its rules impacted the European digital single market?

The digital giants

Today the digital giants are real players in our societies, through the influence they exert, they impact our economy. Supervision of their activity becomes a necessity. But beyond the economic challenges of these platforms, we must question the liability issues of these actors. For example, in 2016, the French National Commission for Informatics and Freedoms fined Google € 100,000. This fine was based on the right to de-listing which allows any EU citizen to have a link containing sensitive data removed from a search engine, this right is provided for in article 17 of regulation on the data protection of natural persons (RGPD) which provides for a” Right to ‘erasure’ according to which ‘ The data subject has the right to obtain from the controller the erasure, as soon as possible, of personal data concerning him and the controller has the obligation to erase these personal data as soon as possible ”. This means that anyone can request that their information be removed from, for example, search engines such as Google or Yahoo.

The right to be effective throughout the territory of the European Union

However, Google refused to apply this right in all of its international search results but only applied it within the European Union. Google has filed an appeal with the CJEU to challenge this sanction. By a judgment of 24 September 2019 , the CJEU considered that:” when the operator of a search engine grants a de-listing request in application of these provisions, it is required to carry out this delisting not on all the versions of its engine, but on the versions thereof corresponding to all the Member States ”. With this decision, the CJEU refuses to recognize a right to be forgotten worldwide. The European judges relied on article 3 of the RGPD to render this decision, which states that: “ This regulation applies to the processing of personal data relating to data subjects who are in the territory Union by a controller or processor who is not established in the Union. ”. While it does not recognize a right to be forgotten worldwide, the court reaffirms that the right to referencing must be effective throughout the territory of the European Union and not only in the country of residence of the applicant. This orientation of the European Union comes from the Google Spain judgment </ a> rendered by the CJEU on May 13, 2014 which refused to recognize an unconditional right to be forgotten, which led the European institutions to recognize a simple right to erasure and not to proclaim a right to be forgotten . So as soon as you exercise your right to de-referencing in front of a search engine, you will only be able to obtain the deletion of your information at European level. So, for example, a person who searches for your name in the United States may continue to have access to this information.

These decisions seem to underline the limits of European law regarding the digital market: While the digital market is dominated by international players, how can we assert our rights which are only applicable at European level?

The European Union wishes to intervene to protect consumers and guarantee their fundamental rights online, but also to enforce the fundamental principles of the European Union as the guarantee of a competitive market. By a communication produced on February 19, 2020 , the European Commission addressed the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions to announce the European Union’s commitment to a digital transition. Digital technologies have totally transformed the way we live and work. The European institutions wish to support this progress by basing themselves on 4 angles of action which must be achieved by 2030, while achieving climate neutrality. On December 15, 2020, the European Commission sent the European Parliament and the Council a proposal for a regulation on an internal market for digital services. The 4 English actions are as follows:

• Digital skills for every citizen of the European Union as well as highly qualified digital professionals Next, the European institutions want our companies to remain competitive at the international level through a total digital transformation: by 2030, 3 out of 4 companies will need to use cloud computing services, big data and artificial intelligence
• The last step is the digitalization of public services: they will all have to be available online, citizens will have access to their medical records online by 2030.
• Secure, efficient and sustainable digital infrastructure: the institutions want all households in the EU to have gigabit connectivity by 2030 and all populated areas to be covered by 5G. Isn’t this objective incompatible with the ecological aspirations of the European Union?

Indeed, a report of Haut Conseil pour le Climat in France has demonstrated the harmful impacts of 5G on the environment. She estimated that 5G would increase CO2 emissions by 15 million tonnes. How will the European Union be able to achieve these environmental objectives to offset the effects of 5G?

The European Commission has stated in the rationale and objectives of the proposal: “Digital services can contribute to the achievement of sustainable development goals by promoting economic, social and environmental sustainability. “. However, nothing is foreseen in the proposed regulation to guarantee this environmental sustainability.

“ Duty of care for a safe and transparent online environment “

We can see that one of the objectives of the European Union is the digital boom. However, the problem that arises in the face of this boom is how to protect the data and personal information of the citizens who will be on these platforms. Chapter III of the proposed regulation is dedicated to this: “ Duty of care for a secure and transparent online environment “. It provides for obligations incumbent on intermediary service providers such as a transparency obligation. They will have to make “ public the information necessary to facilitate the identification of their single points of contact and communication with them . ”

In addition, the European institutions wish to frame the general conditions so that they are accessible to consumers and users of the platforms and understandable.

But beware, we must not forget that this regulation aimed at protecting the personal data of users on digital platforms is not the only one: others are already in force, such as RGPD which has reinforced the transparency and the obligation to inform platforms. It allowed individuals to know the reasons for the collection of their data, to understand the processing which makes it and to ensure control of their data, by granting them new rights and facilitating their exercise. If the new regulation comes into force, it will be necessary for companies to know how to combine the rights and obligations that derive from the new regulationation and those under the GDPR, which will continue to apply. In addition, it is necessary that digital developments do not contradict fundamental rights of citizens such as the right to respect for private life. This is what the European Commission has sought to achieve in its draft regulation, it asserts: “ The proposal introduces important guarantees aimed at allowing citizens to express themselves freely, while strengthening the role of citizens. users in the online environment, as well as the exercise of other fundamental rights ”.

One of the major concepts of European construction and which the European Union wishes to guarantee is respect for competition. Competition must also be guaranteed in the digital market and this is what this proposal for a regulation seeks to guarantee, the first step is the application of these rules “ to intermediary service providers, whatever their position. place of establishment or residence, in so far as they provide services in the Union, provided that a close link with the Union is proven . “. But ultimately, the problem that arises is the same as that which arose with Google in 2020: how to guarantee our rights and enforce them at the international level when European rules only apply on European territory?

Finally, the main objective of the draft regulation is to protect consumers by promoting the traceability of user companies on online marketplaces as well as their transparency. It aims to fight against illegal goods, services or content online and provides for measures that complement the general data protection regulation by allowing users of digital platforms to have access to their data and by adopting provisions aimed at prevent risks, in particular by setting up obligations that weigh on platforms such as the obligation to alert in the event of misuse of their systems.

States will play a central role in compliance with these regulations with the establishment of a control structure that will ensure that companies comply with the regulations. It will be necessary for online intermediary service platforms to adapt their activity to this new regulation if it enters into force.

The Eternoscorp team remains at your disposal to answer your questions about the European digital market and its regulations as well as to support you in allowing you to adapt to new regulations.