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.