In December 2020, the European Commission presented their Proposal for a Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector, also known as the Digital Markets Act (DMA).
The European Publishers Council (EPC) welcomes warmly the European Commission's Proposal, which represents a significant step towards preventing digital gatekeeping platforms from engaging in practices that are detrimental to the millions of business users relying on them to provide their services to end users.
The EPC sees that the Proposal is a clearly targeted and sound document which we believe could benefit from certain amendments.
Our key recommendations are:
In general
The EU should act decisively and not delay unduly the regulation of digital services where it is apparent that business users will be harmed due to certain practices of gatekeepers.
The DMA should be targeted at regulating a small number of large digital platforms
The EPC strongly believes that it is important that the DMA obligations are not restricted to the conduct of a particular gatekeeper, but are sufficiently flexible to be applicable to existing, and most importantly, similar future conducts of existing and emerging gatekeepers.
The regulatory dialogue should be more transparent, and explicit provision should be made for business users to be able to, at the very least, comment on the effectiveness of the proposed measures for compliance with the Article 6 obligations.
On substance
The EPC is generally satisfied with the obligations imposed on designated gatekeepers on the basis of Articles 5 and 6 but could benefit from some targeted amendments to ensure the fairness and contestability of digital markets.
A broader prohibition of self-preferencing should be added to the list of Article 6.
Web browsers should also be included in the list of core platform services.
DMA should state explicitly that online platforms incorporating voice assistant technologies fall within its scope
When combining personal data sourced from the gatekeeping platform with personal data from any other services the consent exception should be removed and gatekeepers prohibited from combining and using data sourced from their core platform services with personal data collected for their own purposes from sources or services where they are present as third parties.
Gatekeeping app stores should be obliged to allow app developers to engage in any type of in-app or out-of-app communication with their end users (and not only to “promote offers” to them).
Article 5(e): this provision should not be limited to “core platform” services, but extended to all “ancillary” services that gatekeepers may wish to tie to their core platform service, including payment services.
The obligation to “apply fair and non-discriminatory conditions” to ranking must be maintained in the legislative process.
Gatekeepers engaging in ranking of products and services must be obliged to submit to regular independent audits of their algorithms
Gatekeepers should be required to provide access to granular, user-level and high-quality information,
The obligation for real-time access to data should be extended to data provided for or generated in the context of the use of ancillary services
The obligation to provide fair and non-discriminatory conditions of access should also apply to gatekeeping online platforms incorporating voice assistant technologies
Article 6(1)(k) should also include an obligation for gatekeepers to negotiate, on fair and non-discriminatory terms, for the use of content on their core platform services.
On enforcement and implementation system of the Proposal the EPC emphasises the need for:
Swift processes that allow the Commission to intervene promptly when needed and
the allocation of sufficient resources to the Commission to exercise its tasks under the DMA.
It is imperative that the availability of interim measures in the toolbox of the Commission is upheld as the Proposal goes through the European Parliament and the Council.
There is further room for Member States to be involved in the monitoring, enforcement and implementation of the DMA,
The EPC considers that a significant gap in the Proposal is the lack of a formal complaint system, which would be instrumental in the effective implementation and enforcement of the DMA. Such a system would enable business users that continuously use the gatekeepers’ services and thus are in the best position to witness whether the gatekeepers comply with the DMA to bring, in a timely manner
We are making available here three documents: our Summary Position Paper of views and recommendations, our Proposed Amendments, and the Full Position Paper including the proposed amendments.
In parallel to the Digital Markets Act we have set our views and recommendations on the Digital Services Act Proposal. For the DSA Position Paper please follow this link.