Yesterday the European Parliament adopted its negotiation position on the Digital Services Act (DSA). This opens the way for trilogue negotiations on this central element of the European Commission’s legislative agenda for the digital space. By all reports, the text adopted by the European Parliament, further strengthens what was already a good proposal, and it now seems possible that the DSA will be enacted later this year.
The DSA which — as the name implies — regulates the provision of digital services across the EU, has been described by some as a sort of digital constitution. It builds on top of the rules laid down in the 2001 E-commerce Directive — which it largely leaves intact — by providing additional requirements of providers of digital services that reflect the increasing importance and impact of digital services in society.
While the increasing regulatory scrutiny of large online services is welcome, the approach taken by the DSA raises questions about the way the EU legislator perceives the digital space. Here the dominant narrative continues to be an economic narrative. This focus is evident in the names of the relevant legislative instruments—the E-commerce Directive, the Copyright in the Digital Single Market Directive, the Digital Services Act, and its companion Digital Markets Act—but also resides on a deeper level. Nearly all recent legislative initiatives dealing with digital issues treat the market as the rule and non-market actors—such as public institutions or civic initiatives—as the exception.
Examples of this can be found in Article 17 of the DSM Directive (which exempts “not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open-source software-developing and- sharing platforms…” from the obligations imposed on User Generated Content platforms, Article 14 of the Data Governance Act that exempts “not-for-profit entities” from the registration and transparency obligations imposed on data intermediation services and now the Digital Services Act. During the last stage of the parliamentary deliberations on the DSA, the Greens in the European Parliament proposed an amendment that would have excepted “not-for-profit educational or scientific repositories, not-for-profit digital archives, and not-for-profit digital libraries” from the obligations imposed on other digital service providers. Unfortunately, this amendment was not adopted. Instead, the European Parliament proposes a slightly kafkaesque mechanism under which the European Commission would be empowered to “issue a waiver to the requirements of Chapter III” to such entities.
Fundamentally there is nothing wrong with these exception clauses for non-market actors—all of which address important concerns—but their proliferation in recent EU legislation should give us pause to think. How come that we are treating important sectors of our societies as mere exceptions when we engage in making the rules for the digital space? It would seem that institutions that are the cornerstones of our democratic societies deserve better than having to advocate again and again to be carved out from regulations enacted to reign in the excesses of the market? If we are indeed engaging in a process of digital constitution-building (as we have argued elsewhere) then this effort must include positive definitions of the role we want our public institutions and civic initiatives to play in this space.
Right now anything even resembling a positive vision on the role of public institutions is missing from the European Union’s rapidly expanding regulatory instrumentarium dealing with the digital space. The piece of legislation that comes closest to this is the Open Data Directive—néé Public Sector Directive—which explicitly deals with the role of public sector institutions in the information environment but does not offer these organizations anything other than obligations on how to deal with information they produce.
But there is so much more to be done in this area. This ranges of questions related to copyright—how can we enable public institutions to fulfill their public inserts missions without constantly running into the constraints from the copyright system?—to liability—does it really make sense that public institutions face the same liability risks as giant platforms?—questions around digital sovereignty—do we want to accept that public institutions outsource more and more of their core functions to private infrastructure and service providers?—to questions about media policy—should we really limit the ability of public media services to develop online services to protect commercial media companies from unwanted competition?
All of these questions deserve much more attention from the EU legislator than they are currently getting. If we do not want public institutions to become marginalized as a by-product of the digital transformation, then the European Union finally needs to put them on the agenda and develop a positive vision of the role we want our public institutions to play in the digital environment. The current constitutionalist phase of rulemaking for the digital space will not be complete without addressing the role public institutions should play in the online environment.
Once the EU legislator is done with the current round of legislation — which, given the speed of the DSA and DMA so far, may happen much earlier than most of us would have expected even a year ago — it should set its sights on developing such a vision and to draft a proposal for a Digital Public Sphere Act.