What legal changes does the European Single Digital Market need?

Back in 2000, Google did not have advertising, Amazon only sold books and CDs, it would be seven years before mobile phones would start to be connected to the internet and social media, YouTube and WhatsApp were yet to be created. However, Europe's current digital regulatory framework, the Directive on electronic commerce, was approved in that year and is still in force.

"The scenario has changed a great deal, we have to look for new coordinates and a new regulation," affirmed Mònica Vilasau, a member of the UOC's Faculty of Law and Political Science and the organizer of the 2021 International Conference on Internet, Law and Politics: Rebuilding the EU digital market (known by its Spanish initials as the IDP Conference), which will be held online on 30 June and 1 July. Various experts will analyse the three regulatory proposals that are on the table and currently being debated.

The importance of not falling behind

In December 2020, the European Commission proposed an ambitious regulatory package to define its new digital strategy. It is made up of three regulations: one on digital markets, another on digital services and the third on data governance.

As Vilasau stated: "It is a question of establishing new foundations so that Europe does not fall behind. The major players are the United States and China, and we need to see how the European Union can position itself while upholding users' rights, an aspect in which it has the world's most demanding requirements. But this cannot be allowed to affect our competitiveness. That is the major challenge: building an agile economy that guarantees citizens' rights."

  

A complex process

"In these three regulatory proposals, everything is extremely interconnected because they also involve intellectual property, competition law, data protection, freedom of expression, social media regulation, service provider responsibility, etc. These are all subjects that are on the table and being debated and analysed," said Vilasau. They will also be the issues covered in this year's IDP conference.

The legislative process, however, is slow and complex, given that these Commission proposals will be worked on by the European Council and then by the European Parliament, before finally reaching the phase known as the trialogue between these three bodies.

The strength of the 27

Much of the difficulty lies in the 27 Member States of the European Union reaching an agreement they can all adopt with a single voice. This empowers the EU's citizens and also provides greater security for companies that want to operate within the EU's borders.

Regulations have been chosen as the type of instrument to achieve this increased level of unity and consistency. "For some time, the European Union has been getting us used to there being regulations rather than directives. It is a strategic decision because a directive is adapted by each Member State as it sees fit. A regulation, in contrast, is more uniform and propitiates the existence of a single market with the same rules for all," explained Vilasau.

They are measures that are, moreover, applicable outside of the territory. That is, their rules can be applied to companies operating from outside the European Union insofar as they offer their services to its citizens.

Increasingly bigger and more powerful companies

Another of the major problems facing lawmakers is the increasing size and power of the major technology companies. This is something that first and foremost generates a sensation amongst the public that they are not protected from them, even in the European Union, which is known for being especially protective.

Vilasau commented on this supposed defencelessness: "Rather than not having rights protected, it is often more a case of how complicated it is to make rights effective. Perhaps there is a lack of agility in the mechanisms used to lodge complaints or denounce certain practices. A consumer may be reluctant to go up against a telecommunications giant in relation to personal data protection or overbilling issues. This is why it is important to set up mechanisms to resolve conflicts or alternative measures."

Additionally, as expressed by Vanessa Jiménez, also a member of the UOC's Faculty of Law and Political Science, these big companies have become gatekeepers in online markets and we have to reconsider their obligations. Accordingly, the new regulations aim to strengthen the responsibility of the platforms and their due diligence in relation to the presence of unlawful content. Moreover, given that these companies are the gateway to the market for many entrepreneurs, the aim is to incentivize both transparency and free competition.

The immense value of data

According to Jiménez, big companies can affect free competition, as will be analysed in the lecture given on 1 July by Pedro Hinojo González, and in the subsequent round table. Free competition may be affected in platform access and positioning and in data monopolization. This is why the aim is to also establish obligations in relation to data access, especially in the case of entrepreneurs. The possibility of these technology giants sharing their data with government agencies to benefit the entire community is also being considered.

It is often said that data are the oil of the 21st century, which is why they will very much be on the agenda of the IDP conference. On 30 June there will be two lectures on this subject. One will be given by Professor Anupam Chander and the other by Professor Marijn Janssen. The new European digital strategy, for its part, devotes an entire regulation to data governance with the clear aim of ensuring that it remains the world's most demanding legislation on this issue. "It is important to set rules in this aspect because they offer the public security and mark parameters to which companies can adhere. Quality demands need to be defined and this is what the European Commission is trying to do with this regulatory proposal," concluded Vilasau.

The 2021 International Conference on Internet, Law and Politics: Rebuilding the EU digital market will be held online on 30 June and 1 July.

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