What do we know about the future European Digital Services Law?

Without a doubt, its scope is quite broad, as it covers regulation of online advertising, management of personal data, content moderation, cloud services, messaging services, services based on artificial intelligence, collaborative economy, search engines, among others. he pointed Xataca. What is the background we have in this regard? The Directive on electronic commerce of the year 2000. Clearly, after 20 years many of the regulatory provisions may fall “short” in the face of the constant evolution of digital services.

La European Commission noted that this new law should be based on two pillars:

  • Harmonize the responsibilities of online platforms and that of information service providers, as well as deepen the supervision of the platforms in terms of content management.
  • Guarantee equal conditions in markets whose peculiarity is to have "large platforms" that act as "gatekeepers".

Possible news according to the European Parliament resolution of October 20, 2020 that gave recommendations on the future Digital Services Law:

  • The measures adopted by this new legislation must differentiate between digital services aimed at (I) consumers, (ii) professional users and (iii) the general public.
  • Mechanism of "notification and action" to stimulate the blocking of illegal content. Likewise, they point out that content moderation could only be applied to illegal content (network neutrality?). On the same subject, they emphasize that, in any case, the final decision on the legality of certain content concerns an independent judicial body and not a private entity.
  • Introduction of the principle "know the business customer" as a new obligation for virtual platforms by which they must supervise companies that they consider fraudulent and restrict the use of their services for the promotion and sale of their illegal or unsafe products or services.
  • Imposition of principles of transparency in the case of services based on Artificial Intelligence, as well as regarding the treatment of algorithms and data used.
  • List of actions that technology companies can and cannot do, that is, they want to reduce the discretion of their actions.
  • Establishment of criteria that make it possible to differentiate a platform with “significant market power” and based on this, establish that those that lack such power could be exempt from some regulatory provisions.
  • Inclusion of rules that restrict the "exhaustive monitoring of user interaction with content" for the generation of targeted advertising. And that the user's exposure to “behavioral advertising” must be conditioned on the free, specific, informed and unequivocal consent of the user.
  • Allow the user to access digital services anonymously, whenever possible. With which, unless it is strictly necessary, you would not always have to provide your data.
  • Public entities should only have access to a user's metadata only in the event that there is an ongoing investigation for serious crimes, and always with prior judicial authorization.

What if this is not fulfilled? Well, it will be the moment of the multimillion dollar fines shower. Since the amount of fines is not usually a fixed amount, but is usually a percentage of the annual income of the companies with the highest income worldwide. Undoubtedly, the novelties it presents could represent an important paradigm shift regarding the design of these digital services.

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Marilú Lazo
Lawyer from the Pontificia Universidad Católica del Perú (PUCP). Director of The Crypto Legal Blog, she has experience in corporate advice, consumer protection, as well as in matters of personal data protection and new technologies.

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