Bad Reporting of EU Tech Policy and Regulation in the Media: How to Recognise it and How to Get the Real Picture

While there can be no doubt that EU tech policy cannot be considered the sexiest topic on the planet, it is nevertheless covered very frequently in the media. In the era of privacy leaks, government surveillance, AI and streaming, to name but a few, it is also very relevant. It is not surprising, therefore, that reputable newspapers often cover real and imagined EU activities with vigour. A careful reader would, however, find that articles written by experienced journalists often carry sensationalist titles. Even more surprisingly, such a reader would have difficulties confirming the article’s claims on EU’s own portals. The reporting is often incoherent, confuses different policy areas and rarely quotes original sources or points the reader in the wrong direction. This was particularly obvious in the recent wave of coverage of global platforms such as Google and Facebook. Here are some of the examples:

On March 14, 2018, Reuters carried a story with a bombastic title: “Google, Apple face EU law on business practices”. The article claims that the EU is “drafting a new regulation”, that this regulation will be “specifically targeting online platforms” and that it will ask companies to be more transparent on how they rank search results. The same story was subsequently carried, almost verbatim, by a number of newspapers and online portals, including the Financial Times, the EU Bulletin and Business Review. Anybody being even vaguely familiar with the EU’s Digital Single Market project would be surprised at such statements. This is more so since the Commission’s own 2016 Communication on Platforms states that no new directive or regulation on platforms is forthcoming nor does it list search engine ranking algorithms as being under scrutiny. While the Commission is not organised in the way it presents its activities, it rarely acts without proper announcement.

What is the origin of the story, then? The mystery is not very deep. A careful reader would notice that a new EU package on consumer law appeared on April 11. Part of that package is a proposed Directive updating a bunch of EU consumer laws (informed, among other things by a behavioural study on transparency in online platforms), including the 2005 Unfair Commercial Practices Directive. Suggested as one of the changes is the new Article 6a, applying to online marketplaces. It says that “the main parameters determining ranking of offers presented to the consumer as result of his search query on the online marketplace” must be disclosed to consumers or the practice would be considered an unfair one. More interesting, however, is the Commission’s work on fairness in platforms-to-business relations. As part of the 2015 Strategy’s promise to look at platforms, the Commission promised to look at transparency of trading practices of online platforms. The inception impact assessment, published in late 2017, looks at three legislative options: soft law, targeted EU instrument coupled with industry-led action or detailed EU principles. Whoever wrote the original Reuters article would have seen the work on the consumer package and/or seen the transparency document on fairness in platform-to-business relations and may have also seen a draft document as an outcome of one of the three options. They then constructed the story which, while containing elements of truth, is still considerably off the mark. It is also worth noting that even modestly controversial EU proposals get significantly modified and are occasionally withdrawn where the Council and the Parliament cannot reach an agreement. What will happen, at best, is that a proposal will be tabled and discussed at length.

Another article appeared in Financial Times on April 17. It claimed that EU is “to give judges power to seize terror suspect emails and texts”. It begins with the familiar “Brussels is planning” words and goes on to say that judges will get “the power to seize emails and text messages of terror suspects” and that the Commission “will propose giving national judges the extraterritorial power to order companies to hand over ‘e-evidence’ held in servers in another EU country or outside of the bloc.” While this sounds both dramatic and controversial, readers would be hard pressed to understand which regulatory platform this proposal falls under, which DGs might be involved, where to find the policy document, how to follow the developments or how this proposal fits in the broader Digital Single Market Strategy. A much more coherent (albeit shorter) account of the affair is to be found on Politico’s website. There, it is clarified that the proposal is part of the Commission’s drive to improve taking of e-evidence and outlines its main features as well as differences from the current regime. Crucially, the article identifies that this is part of the effort to achieve a “common judicial area” and that it only applies to serous crime. A casual look at the Commission’s website on taking cross-border evidence would reveal that this is indeed part of an ongoing effort in cross-border judicial cooperation, that “European Investigation Order” is already in force and that work continues on the “European Production Order”. While the FT article is not entirely wrong in its reporting, the value it adds to the debate is minimal.

Similar stories are to be found all over the Internet. It is usually easy to recognise them as they are rarely specific and are usually framed in the clichéd “Brussels plans” or “EU threatens” style. How is the reader to find out what is really behind the story?

The first step is to identify the area the tech policy belongs to. Very roughly, three regulatory circles exist in the EU’s Digital Single Market effort. Information society services are regulated under the e-commerce framework (here also including copyright, privacy, speech regulation, etc.) Telecoms regulatory framework covers telecoms networks and services. Finally, media under editorial control are subject to Audio-Video Media Services Directive (AVSMD). The circles, although distinct, overlap. Privacy, for example, is subject both to e-commerce rules (GDPR) and telecoms rules (ePrivacy regulation) which means that a full picture can only be obtained by looking at both.

The second step is to identify the general EU policy in the area in question. The 2015 Digital Single Market Strategy should always be consulted as should any other statements that further clarify the political EU position of a particular issue. For platforms, for example, there exists the Communication (mentioned above), but also the 2017 Communication and the 2018 Recommendation on Illegal Content online. The formation of a potential proposal is always followed by various studies the Commission publishes (usually outsourced to think tanks) as well as stakeholder consultations, speeches and announcements on web sites. The platform law above, for instance, is preceded by the already-mentioned inception study and the behavioural study on transparency.

The third step is to check whether any policy ideas identified in steps 1 and 2 have been transformed into legislative proposals. Privacy, consumer protection, cybersecurity, copyright, telecoms, AVMS services and e-commerce all have their own websites (sometimes multiple ones at different institutions). These not only summarise present laws but explain policies and plans for future regulation. Further to that, stakeholders are often engaged in commenting on relevant proposals, both officially (as part of the Commission’s fact-finding exercise) and in their own reports, blogs, etc. Such documents are invaluable for gauging public and professional opinion. The final step would be to confirm that proposals are about to become laws. Existing proposals can be traced through the Legislative Observatory.

While the above may seem banal, it is rarely followed, which results in confusing and messy reporting. Although it may sometimes seem that proposals come “out of the blue”, this is in reality almost never the case as significant preparatory work is needed and the Commission launches initiatives based on plans announced in strategy documents. In other words, the Commission maintains a certain degree of transparency for political and budgetary reasons and has no political mandate to randomly tackle issues not otherwise announced as part of a wider political agenda. In such circumstances, it becomes very important to place the news in their proper context.

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An Overview of EU Cyberlaw Literature

I often get asked, by students and colleagues alike, what books to get and how to use them. Since Cyberlaw is, in the memorable words of Frank Easterbrook, “the law of the horse” – in other words, a collection of disparate legal disciplines, working with EU Internet Law does, unfortunately, mean working with many different disciplines. The situation is not so dire, however, as decent works exist in all of them and there are also some truly excellent ones. In this post, I will aim to give an overview of the books that I find particularly useful and work with relatively often. It is probably worth saying that, although Internet law changes relatively rapidly, books do not get out of date so easily. This is for a simple reason that EU Directives have a relatively long shelf life (E-Commerce and InfoSoc directives, for example, date to 2001) and the European Court produces a ´small number of judgments in each of the areas listed below.

Policy. No general books exist that cover EU Internet policy (although some references to policy and governance in individual areas are to be found in the works below). The following two books are not specifically EU oriented but they give a good overview of the main issues  involved. Ian Brown (ed.)’s Research Handbook on Governance of the Internet (Elgar 2013) is a good introduction to governance in cyberspace while Reed’s Making Laws for Cyberspace (OUP 2012) throws light on the law making process.

General literature. Few general works exist, although the situation is better now than it used to be. My own EU Internet Law (Edward Elgar 2013) is coming out in the 2nd edition later in 2016. It is complemented by the Research Handbook of EU Internet Law (Savin/Trzaskowski, Edward Elgar 2014). Neither is meant as a textbook and those looking for one should probably look at the Introduction to EU Internet Law (Trzaskowski/Savin/Lundqvist/Lindskug ExTuto 2015). A compendium of texts, cases and materials has been published in 2015 (Koščík et al. eds., available online) and is a useful collection of primary sources.

Those interested in the historical development of the main EU directives have a couple of volumes to consider. Lodder and Kaspersen’s eDirectives: Guide to European Union Law on E-Commerce (Kluwer 2002) remains the only article-by-article comment on the major EU Internet directives including the E-commerce, the Copyright and the Data Protection directives. Similar effect is achieved in Lilian Edwards’ (ed.) The New Legal Framework for E-Commerce in Europe (Hart 2005), which is an indispensable work for understanding policy decisions behind E-Commerce Directive.

Surprisingly, no up-to-date books covering electronic commerce only exist today and by far the best ones are the two volumes quoted above. Elgar’s Research Handbook on Electronic Commerce Law is due in September 2016 and will cover this gap to some extent.

Copyright is one of the areas where there is abundance of excellent books. A general work covering all EU IP Rights is Trevor Cook’s EU Intellectual Property Law (OUP 2010). Although no longer up to date in terms of case law, it gives a good overview of the basic directives. The Stamatoudi/Torremans detailed commentary on EU Copyright Law (Elgar 2014) is the most comprehensive article-by-article reference on all EU copyright-related directives including a section on EU policies. An earlier version with a similar scope (OUP 2010) is the Walter/von Lewinski’s European Copyright Law: A Commentary. An overview of the Member States’ implementation of the Copyright Directive is the Lindner/Shapiro Copyright in the Information Society: A Guide to National Implementation of the European Directive (Elgar 2011). Kur/Dreier European Intellectual Property Law: Texts, Cases & Materials (Elgar 2013) is excellent as a textbook in this area as is Pila/Torremans book with the same title (OUP 2016).

Trademark. Botis/Maniatis/Mühlendahl/Wiseman’s Trademark Law in Europe (3rd edition, OUP 2016) is a comprehensive overview of the area. Kur/Senftleben’s European Trademark Law is out in February 2017.

A review of the new EU patent system can be found in Pila/Wadlos (eds) The Unitary EU Patent System (Bloombsury 2015).

The most recent summary of cybercrime issues is Gillespie’s Cybercrime: Key Issues and Debates (Routledge 2015). A view of the EU cybersecurity policy issues is to be found in Christou’s Cybersecurity in the European Union: Resilience and Adaptability in Governance Policy (AIAA 2016)

Consumer issues are covered relatively comprehensively. Up-to-date general works exist, including Weatherill’s EU Consumer Law and Policy (2nd edition, Elgar 2014) and Micklitz/Reich EU Consumer Law (2nd edition, Intersentia 2014). Policy issues are covered in Leczykiewicz/Weatherill The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (Bloomsbury 2016). Djurovic’s European Law on Unfair Commercial Practices and Contract Law (Bloomsbury 2016) covers the UCP directive. Twigg-Flesner’s (ed.) Research Handbook on EU Consumer and Contract Law is due in September 2016.

Private International law, while being subject to a multitude of general titles, has only a few specific ones that apply to the Internet only. An example is Svantesson’s Private International Law and the Internet (3rd edition, Kluwer 2013). Specifically consumer-oriented is Tang’s Electronic Consumer Contracts in the Conflict of Laws (2nd edition, Bloomsbury 2015).

Comparative law: Knowing what is happening in the United States is an important part of understanding where the EU laws come from and why they are written in the way they. A good general overview (including cases and materials) of American Cyberlaw up to 2010 is Bellia/Berman/Frischmann/Post’s Cyberlaw (4th edition, West 2011). Grimmelmann’s Internet Law: Cases & Problems (Semaphore Press, 2015) provides a more up-to-date look.

Books on privacy have traditionally concentrated on national implementation of EU laws. The current situation is made more complicated by the recent adoption of the General Data Protection Regulation, which fundamentally changes the current EU law and has yet to be subject to a comprehensive coverage in a book format. The best overview of the current law is to be found in EU’s own Handbook on European Data Protection Law (EU 2013). An up-to-date discussion of policy and constitutional issues are discussed in Hijmans’ The European Union as Guardian of Internet Privacy: The Story of Art 16 TFEU (Springer 2016). Further to this, there is Lynskey’s The Foundations of EU Data Protection Law (OUP 2015) which does cover some aspects of the initial GDPR proposal.

In addition to the above, the following three are also of interest.

Telecommunications law (or, as the EU itself puts it – electronic communications) is, strictly speaking, a separate branch of law that applies to carrier only (the wires) and not content on the Internet. Nevertheless, since convergence between content and carrier has been blurring this boundary for a considerable time now, some knowledge of the area is needed. Three comprehensive books exists on the subject. Scherer’s (ed.) Telecommunication Laws in Europe (Bloomsbury 2016) is an overview of national laws but it does begin with an introductory section on EU telecoms laws. The most comment-like treatment of the 2009 telecoms package is Nihoul/Rodford’s EU Electronic Communications Law (OUP 2011). A comprehensive analysis of the ex ante approach to telecommunications is Hou’s Competition law and Regulation of the EU Electronic Communications Sector (Kluwer 2012). Finally, my own EU Telecommunications law is due with Elgar later in 2017.