EU must protect its fundamental values online

In our first spotlight video interview, Netopia editor Per Strömbäck meets Alex Agius Saliba, member of European parliament representing Malta in the S&D-group. MEP Saliba is one of the most prominent persons in European digital policy, not least as rapporteur on the Digital Services Act for the IMCO committee in 2020.

Netopia had the chance to ask MEP Saliba’s views on the reach of European policy on the global internet, how to promote innovation, freedom of speech online and other hot topics.

This is the first Netopia spotlight interview, more to come – watch this space!

What brings you to digital policy?

I think that digital and especially social media platforms today have become so important and so prevalent in our lives, they have become the new public utilities, and if you look at the legislation when it comes to the digital framework, strengthening our digital single market we have fallen behind for a number of years.

So I have always had a lot of interest in information technology law, especially issues dealing with eCommerce and also competition law and how competition interacts with the digital industries.

Therefore, this was my natural choice to focus on this in the European Parliament, especially in the internal market committee on digital issues (IMCO).

It’s a field whereby a lot of work is needed at the EU level and I believe that this is the right time to do so.

What is the domain and reach of European policy. We’re talking about the Internet it’s a global network. It’s a global market, it’s dominated by, often actors far outside of Europe. What is the reach of the European policy?

It has a lot of reach: first of all, I think what we are doing today with the big discussions in the DSA and also DMA I think this will have a reach not only in the European continent, but it will have also a reach and impact in other continents.

We have a reach as European legislators for one reason, because ultimately when you are talking about digital you are not talking about a vacuum.

Just one thing you’re talking about fundamental rights, fundamental rights of privacy, you’re talking about fundamental rights which are so important.

Consumer rights and other user rights so digital rights per se are interlinked with core European values core European values which we must and should not let only big tech companies to regulate the digital infrastructure, and digital regulatory framework by themselves; basically conditioning the rules upon which they have to work and function. Ultimately we, as European regulators have to be ambitious, courageous enough to take bold steps, so that ultimately we take back control of the digital ecosystem. It’s not about an issue about punishing.

It’s not about small versus big. It’s an issue about if you want to target directly our users, our consumers, our market…big tech companies being big, small, medium sized. They have to play by our own rules.

So this is a fundamental point and I think and I believe that is why we should act and act fast. We have already lost a lot of time.

In this sphere it’s a total shame for me as European regulator that we are in a situation whereby creative legislators and creative European court to interpret a 20-year old legislation.

The e-Commerce directive was enacted way before a number of these big tech giants and platforms which have become unavoidable trading partners for European industries and have become unavoidable for European citizens. This is the reality.

And this ecosystem is being tackled through and by a 20-year old piece of legislation which has some elements which are still relevant, but I think there are a
lot of legal loopholes that we have to fill and this is so important to take back control of the digital ecosystem.

What are some of the policies that you would like to put in place to deal with the problems you point to?

First of all, some of the most pertinent issues that I have been very focused upon are very consumer-oriented and I always take a very consumer-orientated approach because I believe in consumer rights. And I don’t believe that there should be first- and second-class consumer rights.

First class for offline and second-class consumer rights for the online system.

That is not fair. Today our consumers have become digital consumers and it’s really important for us to take actions accordingly and not treat digital consumers as second class consumers. And also, if we want to help our industry, our innovators.

We have; for example, a very flourishing app developer [scene] in the European Union. The biggest issues that these innovators, start-ups are facing is issues of scale-up and if we want to become the leaders, we have to take back control, by moving forward a number of the fundamental principles such as those principles which I totally endorse under the DMA
basically, defining who gatekeepers are… having a systemic role in the ecosystem and also, imposing a list to achieve a better equilibrium in the ecosystem to take back control by
moving forward the “Know Your Business Customer” provisions to ultimately do away with issues of…. I have nothing against internet anonymity because
internet anonymity is a fundamental importance,  and is a fundamental right for users. But anonymity for business transactions.
This is something which has to be solved,  and this can be solved by the verification element that we want to insert under the traditional Article 5 of the eCommerce Directive
So strengthening information that ultimately is being provided. And also by moving forward others principals, such as principals which are so important when it comes to the business model that these big tech companies and digital platforms are using…. the business model of advertising.

There are a lot of issues when it comes to targeted advertising. We are an assembly group have moved a very interesting campaign: “The Enzo Campaign” aimed to raise more awareness
and do away, ultimately, with targeted advertising. And this is also a priority for my political family. But also, other issues, for example, giving an  extra-territorial element to
the eCommerce/DSA initiative, ultimately enforcing the principle which the Commission took also from our report of what is it illegal offline, should also be considered to be illegal online
and ultimately those sellers who are targeting directly through online marketplaces, but not only, those sellers who are targeting directly our users, our consumers, our market, they have to play by our own rules.

And we do away with the competitive disadvantage of third-country sellers and European producers and distributors who have to abide by stringent EU [rules], especially when it comes to Health and Safety requirements and ultimately third-country sellers do away with all these requirements and have the competitive edge over industries and over our SME companies in the EU who have to abide by all the rules to enter in the Single Market, but also other important issues for me are issues of the Notice and Action” system, which is againof fundamental importance. Maybe users were not so aware about the importance of having a harmonized “Notice and Action” system, they became aware of this big legal loophole, when they saw the recent Capitol Hill incidents when they saw the Parlor being taken-off by a number of platforms when they were basically challenging decisions that were taken unilaterally by big tech companies, and again that is why I could believe that it is the right time to do such reforms, because there is the political push and there is the political visibility and ultimately citizens and users also No, what is happening more transparency out there and also make these want to know to what is happening, have more transparency and also make these companies function in an ecosystem and in a regulatory framework and not play only by the by their own rules. I think these are the main issues that I want to see tackled through the DSA and DMA initiatives.

It’s the Digital Services Act (DSA) and the Digital Markets Act, the DMA, and currently as they we speak they been proposed by the European Commission and they’re being negotiated now.
First do you see these two as parts of the same thing or can they also be handled separately, can you have one without the other?

No. I think both of them are important single market instruments and one is dependent on the other.

It’s impossible to move forward what we are proposing under the DSA and create this equilibrium and sort this big imbalance we have if we don’t have the DMA instrument whereby we will be filling in the blanks which traditional competition traditional ex post competition law cannot fill by itself. So one works in-tandem and in-hand with the other and we cannot discuss the DSA, without in parallel also having a strong DMA. I think they are both very ambitious texts. If you tell me are the ambitious enough? I will tell you I wish the Commission was more ambitious, in a number of areas, especially when it comes to online marketplaces … when it comes to issues such as recommender systems and then transparency in these systems and not only focus on big tech when it comes to advertising and recommender systems.

I think we have to take a more holistic approach, but if you look at the proposals, I think that the point of departure in this is that we cannot view them as a silver bullet to solve all the issues that we have in the ecosystem.

If we take that approach and try to do a lot of patchwork, even internally, although we try to do away with patchwork initiatives in different member states, but if we try to do a patchwork exercise whereby we have these two legislation and try to overload them with a lot of initiatives to try to solve all the issues we will definitely fail, so I think it’s a good to start to try to take back control but ultimately  they are good proposals and something which we can work on during these next months and definitely they will be tough negotiations between the Parliament, Council and Commission.

Maybe if we look at one particular piece, the so called Good Samaritan clause which provides immunity to intermediaries when they take action, some say this will put the terms and conditions in the community standards of the services and platforms above national law what what do you say to this argument?

I’m going to be totally blunt about this. I was always blunt when it comes to Good Samaritan issues I am not in favour of replicating the US Good Samaritan system .. even with a soft touch approach implemented at European level so this is an issue which was very hotly debated also under the compromise of the proposal which I was leading, and in the IMCO committee and a considerable number of MEPs who want to go in that direction especially in some political groups, such as EPP and the Renew group but at the same time we as an assembly group and myself as a person who directly on the DSA and I will continue to work on a number of amendments that I wish to move forward
in the next months and weeks ahead the negotiations we will have in the internal market committee, but I am not one of those of in favour of copying a failed systema system which is already heavily critized in the US and replicated under EU law.

It’s not my first pick and it’s not my first reference to have a Good Samaritan system being soft, a softer system than US or hiding due diligence any other name. I believe that the issues that and cannot be so simply by self-regulation.
They have to be sorted by a clear set of rules

The other half of the immunity for for intermediaries which is the Safe Harbour provisions which are part of the eCommerce directive since many years in Europe….How do you see these rules could be developed, do you think there should be some kind of vetting process to achieve immunity?

I think the Commission in its proposal was very clear when it comes to Article 12 to Article 14/15 of the eCommerce Directive, 12 to 15 and the 15, on touching up the Safe Harbour provisions.

I was very skeptical about even this exercise and I have asked many times different members of the Commission including the Executive Vice President because where you have also application exercise and the copy-pasting exercise you always open up the Pandora’s box for an number of amendments and tweaks to the original principles is that we have are of fundamental importance to the flourishing and functioning of our Digital Single Market and digital services online. So we have to be very very very cautious if we touch-up on those fundamental principles, they can destroy the whole ecosystem so we have to be cautious in that regard. So I think in that respect the eCommerce Directive was very future proof.

So I think, and I firmly believe that we can still work within the Safe Harbour provisions that we have but ultimately there needs to be more clarity and the courts have provided a lot of this clarity “when it comes to the “active” or “passive” status, when it comes to a number of other principles to define when and how exactly an action will help you to lose your liability shield so I think that as legislation we have to basically translate in clear tense so that we do away with the
uncertainty that is present out there by a number of players who tell you that although they are comfortable with the with the liability shields It’s not always very clear. But I think that the guidance is there from the European Court of Justice and I think we as regulators have to frame our provisions and our regulatory provisions around when one is “active” and when one is not, but ultimately I don’t believe that we can, and we should, alter the liability shield provision that we have under the eCommerce Directive and I think this is the message also of the Commission and I agree with that.

Hopefully there won’t be, in the replicating exercise and in the copy and paste exercise from the eCommerce to the new legislation there won’t be attempts to try to alter these principles.

Do you see that there is a threat to freedom of speech with increased regulation?

Do you think this is the domain of the State or should the governments of the world including the European Union, stay away the internet for freedom of speech reasons? 

I think the biggest threat would be if we leave everything as is. If we leave everything as is, the threat is prevalent as we speak without clear EU regulation, and I think the biggest threat would be to leave private companies to regulate speech by themselves and see what fits and what fits not. I don’t with 99% of what Trump says but ultimately I don’t think that big tech companies should be the regulators to regulate on online speech.

So having a system which brings more clarity which basically sets out a framework, for these big tech giants to act and also take decisions on fundamental rights and fundamental freedoms.

I think that is why I open my remarks by saying that we have to take the back control of the ecosystem.

It’s a situation whereby the EU should and must protect its fundamental values, including fundamental rights which are so important by having a system which sets a number of standards, regulatory standards for big tech company to work with, and not work around their own rules.

I think that is the biggest threat to our democracies.

What about innovation?
Do you see that there is a risk that regulation might stifle innovation and put your European companies at a disadvantage in the global competition, compared to other territories which might have less regulation?

I think that the biggest issue that we, and I’m going to focus on the DMA. When it comes to to the stability of our market is the issues that we have with gatekeepers.

So I think that the biggest risk for innovation and I believe, and I’m always a big supporter of innovators and startups in this field, who do so much more if we give them a fairly level playing field to be able to scale up in the digital ecosystem. I think that regulation in this regard will not stifle innovation, ultimately it will help smaller players to innovate more to be more competitive in the ecosystem, because ultimately with the system we have today whereby big tech companies are controlling the ecosystem.

They are putting aside, and putting away, and we have seen numerous cases whereby traditional competition law by itself couldn’t handle complex digital issues that the system will help to bring more innovation, because with more competition comes more innovation and more consumer choice, so ultimately having more control for big data companies will not stifle innovation but will make innovation flourish more because there would be more opportunities for smaller and medium sized companies  to compete out there in the ecosystem.

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