European Internet Policy Update from EuroISPA

Our partner organization, the European Internet Services Providers Association (EuroISPA) provided us the following European policy recap for May 2019.

May 2019

Following the EU elections held in May, The Christian Democrats (EPP) and Socialists and Democrats (S&D) remained the two main political groups of the House, but they lost their absolute majority, making the Liberals an indispensable group to form any stable majority. In Council, the Romanian Presidency prepared a Progress Report on the ePrivacy proposal. It indicates that divergences (on the potential impact of the proposal on new technologies, on the fight against CSAM, or on the possibility of introducing new data retention legislation) between Member States are still significant. Discussions on data retention continued in the Council, as in June ministers will adopt a set of Conclusions asking the European Commission to produce a study examining the possibility of a legislative initiative, as well as to continue exchanges with stakeholders on the topic. Finally, the European Commission has also produced an internal concept note on the future potential revision of the E-Commerce Directive. The document, which proposes a wide range of potential regulatory actions, notes that the new law will have to cover all digital services in the Digital Single Market, with an emphasis on online platforms.

European elections

EU citizens elect new European Parliament

On 23-26 May 2019, EU citizens cast their ballot and renewed the European Parliament. While the EPP and the S&D remained respectively the first and second main political groups, they lost a significant number of seats. For the first time, they do not hold the absolute majority of the House’s seats – this will force them to turn to other political groups in order to form a stable majority. Of greater interest is the performance of liberal/centre political group ALDE, which came third, and who will be a “king-maker”, as it will be indispensable in order to form a majority. The far-right/Eurosceptics came fourth, overall representing 25 % of the European Parliament. The fragmentation of the European Parliament will likely involve a significant increase in ad hoc coalitions. In this vein, we expect the importance of national delegations to increase as well as their influence on the legislative negotiations.

Intermediary liability

European Commission’s DG CNECT concept note on the future of the E-Commerce Directive

Secretariat obtained a confidential concept note by the European Commission’s DG CONNECT (Communications Networks, Content and Technology), dated April 2019, which puts forward ideas for a “horizontal regulatory framework for all digital services in the single market, in particular for online platforms”, including a revision of the E-Commerce Directive. According to the paper, the scope would be broadened, as it would encompass all digital services, including mere conduits, cloud hosting services, online platforms, search engines, collaborative economy services, online advertising services, CDN, registries, and registrars. When it comes to the liability exemption for Internet intermediaries, the paper acknowledges the importance of this principle, as well as of the no-general monitoring obligation. However, it also notes that existing categories (mere conduit, caching, hosting service providers) should be expanded, and that a new category of services with a significant market status should be created and invested with additional obligations. The text also envisages a “Good Samaritan clause”, a binding notice-and-action regime (based on the 2018 Recommendation on illegal content online), and the possibility to tackle harmful (but not illegal) content through codes of conduct at the EU level.

Actions:

• EuroISPA to continue its efforts to formulate key principles on the future of the EU intermediary liability regime to be shared with DG CNECT

Innovation and growth

Copyright Directive published in Official Journal

On 17 May, the Copyright Directive was published in the Official Journal of the European Union. Member States will need to transpose it by 7 June 2021. Furthermore, the European Commission is required to carry out a review of the Directive no sooner than 7 June 2026, and assess the impact of Article 17 (former Article 13 on users’ uploads) on smaller businesses by 7 June 2024.

Poland challenges Copyright Directive before the CJEU

On 23 May, the Polish Government announced that it would initiate a legal challenge against the new Copyright Directive before the Court of Justice of the European Union (CJEU). Poland maintains that the Directive does not ensure a balance between the protection of rightholders and the interests of EU citizens and companies, does not ensure legal clarity, could have a negative effect on the competitiveness of the European Digital Single Market, and could hinder innovation. 

Actions:

• EuroISPA to participate to Copyright4Creativity Coalition meeting on the implementation of the Copyright Directive on 5 June 2019, to be able to provide members with examples of best practices for the implementation of the Directive.

Cybersecurity and cybercrime

Council to adopt Conclusions on Data retention

On 20 May, the Council released its Conclusions on “data retention” which are expected to be adopted by the Justice and Home Affairs Council taking place on 6-7 June. The conclusions cover the main elements to be further studied by the European Commission, notably with regard to safeguards, concepts of general, targeted and restricted data retention, and of targeted access to retained data, the current landscape given significant national divergence, as well as the possibilities of EU-level action, such as a legislative initiative. Moreover, the Council underlines that the proposed ePrivacy Regulation should ensure the legal possibility of a potential new data retention regime. The Council invites the Commission to undertake an information gathering exercise with relevant stakeholders, such as the meeting attended by EuroISPA in March on this subject, and to report on the state-of-play of their work, also producing a study, by the close of 2019.

Data Protection

ePrivacy: Romanian Presidency prepares Progress Report

In May, a Progress Report prepared by the Romanian Presidency on the ePrivacy proposal was leaked. Such a document, which could be adopted by the Telecommunications on 7 June, indicates that there Member States are still divided on the file and were not able to reach a common position by the end of the Romanian Presidency (end of June). The document highlights the issues which were discussed under the Romanian Presidency, including discussions on the proposal’s potential effect on new technologies, such as IoT and AI, as well as its potential impact on the fight against CSAM, and its relation with a potential new legislative regime on data retention.