June 30, 2020

BRUSSELS – Today, global tech trade association ITI issued comments responding to the European Commission’s initial proposals on how to upgrade the EU’s legislative framework for digital services via a forthcoming Digital Services Act (DSA). ITI responded to three inception impact assessments that outline different policy options for three policy pillars: regulating platforms’ responsibilities online, potentially introducing ex-ante measures to mitigate potential gatekeeper effects of some large players and overhauling competition rules with a new competition tool.

“We support the goals of the Digital Services Act to increase legal certainty, clarify roles, and define responsibilities for actors in the online context and are committed to working with the European Institutions to forge a balanced framework preserving a healthy online ecosystem, while clarifying where more legal certainty would be helpful,” said ITI President and CEO Jason Oxman. “We appreciate the European Commission’s thoughtful consideration of the existing legal principles underpinning the provision of digital services and products and for acknowledging their importance to the economy at large.”

A summary of ITI’s comments is below:

Pillar I: Platforms’ responsibilities

ITI supports the roadmap’s intention to clarify and upgrade the liability and safety rules for digital services with a view to removing disincentives for voluntary actions to address illegal content, goods or services. There are countless types of digital platforms that offer different sorts of products and services, and the DSA should provide legal certainty in this constantly changing landscape. Clear rules and responsibilities that do not disincentivise companies’ actions to limit distribution of illegal content online while being flexible enough to allow for innovative solutions are crucial.

Pillar II: Ex-ante requirements

ITI appreciates the recognition that platforms have played an indispensable role in driving innovation and growth in the economy, creating market opportunities and access for businesses of all sizes. The tech sector recognizes that the EU must carefully consider how to ensure that it protects important public interests. Because there has been significant innovation in this space, any ex ante regulation should be carefully considered and appropriately targeted, focusing on a company’s conduct and not on structural issues, like the amount of data a company holds, or its size. It is also important to allow time for evaluating the impact of recently adopted laws, such as the platform-to-business Regulation entering into force on 12 July 2020.

Pillar III: New Competition Tool

ITI is resolutely in favour of a reflection about the need for changes to competition law in order to preserve competitive markets. Proportionate instruments that ensure fair competition should be considered wherever necessary, if it is demonstrated that existing antitrust powers cannot address emerging challenges. ITI is particularly concerned that the options under consideration would allow the imposition of remedies even in absence of any infringement, even to a company that is not in a position of dominance.

“ITI and our members welcome the Commission’s exploration of appropriate policy options to address challenges in digital markets, but the parallel consideration of both an ex ante regulatory intervention (the “gatekeepers” initiative) and the potential introduction of broad-ranging behavioural and structural remedies for specific cases calls into question the overall proportionality and balance of the initiative,” said Guido Lobrano, ITI’s Vice President Director General for Europe. “Providing further indications as to the burden of proof or economic analysis to which such sweeping powers would be subject to would also be key. The online ecosystem is more than just online intermediaries and any legislative approach should be mindful of potential unintended effects on complex supply chains.”

The European Commission is expected to publish a set of legislative proposals in December. Until then, it continues to seek input to the different policy scenarios in two additional public consultations, due 8 September, to which ITI plans to also respond.

Read the full submission here.