Digital Single Market: A missed opportunity

By EDRi · May 6, 2015

The European Commission (EC) published its Digital Single Market (DSM) strategy on 6 May 2015. EDRi is thoroughly studying the DSM strategy and its impacts on European citizens’ digital rights.

A day before the official publication of the strategy, EDRi issued a press release expressing concerns based on the analysis of the leaked drafts (Draft Communication and Evidence Note). EDRi identified a number of points that raise concerns regarding, inter alia:

Privatised law enforcement

We have concerns regarding Commissions’ plans for “ad hoc” enforcement activities by internet intermediaries that already lead to restrictive measures imposed outside the rule of law.
The Commission seems eager to outsource online law enforcement through “self-regulation” projects, while ignoring the risks that the sanctions imposed by intermediaries pose for the fundamental rights of citizens, the risk that such measures are not effective, proportionate or effective and the lack of safeguards, to prevent abuses.

“Intellectual Property Rights” infringements

The Commission has decided to adopt an undefined “follow the money approach”, which may be little more than an approval of the “right” of foreign payment providers and advertising networks to arbitrarily withdraw their services, if they fear that foreign laws are being breached.
The Commission continues to offer its intention to restrict enforcement measures to “commercial scale infringements”, as some form of safeguard. It is doing this despite its own public admission that this term needs a clearer definition.

Copyright

We welcome the Commission’s intention to create an EU legal framework on text and data mining.
The Commission calls for the harmonisation of exceptions and limitations in EU copyright law, but without any indication of what this will mean in practice. What are the negative experiences that would hold the Commission back from making all existing exceptions and limitations mandatory?

Geoblocking

The text expressed a positive approach towards removal of geoblocking, although its reference to “unjustified” geoblocking means that everything or nothing could be ultimately proposed by the Commission.

Data protection and the right to privacy

The Commission acknowledges that massive amount of personal data are being collected and analysed (Big Data) and calls for the exploitation of these data without effective safeguards.
The Commission seems to seek to reinforce “trust and security in the handling of personal data”. To do that, it proposes an unspecified “review” of the e-Privacy Directive with no goal other than the vague “level playing field” that certain operators have lobbied for. The analysis is so vague that even a repeal of the Directive is possible.

Telecommunications

The Digital Single Market’s success greatly depends on the outcome of the Telecommunications Single Market Regulation. However, it appears increasingly clear that the Commission is prepared to accept any outcome, for the sake of closing the file, regardless of possible negative effects on European citizens or the European economy.

“The European Commission isn’t leading; it’s following,” said Joe McNamee, Executive Director of European Digital Rights. “The Commission has caved in to every lobby that has turned up on the steps of the Berlaymont, leaving us with a set of limited, unambitious plans for proposals,” he added.

Our comprehensive analysis of the official Digital Single Market strategy will be published shortly.

EDRi Press release: Digital Single Market: Will citizens be at the centre of the Commission’s plans (05.05.2015)
https://edri.org/digital-single-market-will-citizens-be-at-the-centre-of-the-commissions-plans/

EC Digital Single Market strategy
http://ec.europa.eu/priorities/digital-single-market/index_en.htm

EC Press release: A Digital Single Market for Europe: Commission sets out 16 initiatives to make it happen (06.06.2015)
http://europa.eu/rapid/press-release_IP-15-4919_en.htm

Leaked draft DSM Communication (pdf) (12.04.2015)
http://keionline.org/misc-docs/1/DSMscan-Communication-12-04-2015-OCR.pdf

Leaked Draft Evidence Note (pdf) (20.04.2015)
http://g8fip1kplyr33r3krz5b97d1.wpengine.netdna-cdn.com/wp-content/uploads/2015/04/Digital-Single-Market-Evidence.pdf

Joint stakeholder letter on intermediary liability protections (pdf) (27.04.2015)
https://www.ccianet.org/wp-content/uploads/2015/04/Open-Stakeholder-intermed-liability-protections.pdf