Simple Answers to Hard Questions: What #BigTech Should Do About the Digital Services Act

If you follow the digital policy debate in Europe, you may be curious on how Big Tech will respond to the concept of the Digital Services Act, floated by the incoming von der Leyen-Commission. The Commission appears to take a broad approach on the problems with the digital society today, without resorting to a one-size-fits-all-solution. There are many aspects worth looking at, but for the moment let’s see how Big Tech has responded.

Case in point, a Linkedin-post by Ebay’s top EU-lobbyist Samuel Larinkari. I’ve met Larinkari, we were on the same panel during the Estonian presidency a couple of years ago and the topics were similar – platform liability and copyright in that case. On that panel, Larinkari argued that rather than things like the copyright-directive mincemeat approach, the Commission might as well open the E-commerce-directive. I’m not sure, but I took that as a bold challenge – sort of when, growing up with the icy winters in Sweden, my friends and I would say “you don’t dare put your tongue to that lamp post”*. I remember thinking that it was a smart move by Larinkari. (Also not sure what my argument was on that panel, but I did bring candy for the audience so at least I got the cheap tricks right.)

The E-commerce directive basically says that internet companies should not be responsible for what the users to do on their services. This is where the post office analogy comes from: “telecoms are like the post office, we don’t ask the post to read the letters”. Those who say this is important to protect privacy and confidentiality of information may have a point (though there are some objections too). These days, however, that exemption from responsibility is the basis of things like the world’s biggest taxi company, the world’s biggest hotel business, the world’s biggest video service etc. All of them build on the same idea of making money off somebody else’s content or offer, sometimes providing value back and most of the time with a take-it-or-leave-it-crybaby-attitude. (Yes, looking at you, YouTube, Uber and, but the list can be made much longer.) Now, this is why there are different rules for “active” and “passive” services. A service that actively interacts with the content, making recommendations, playlist, rankings, what have you, is an active service (duh!). A passive service is what is sometimes called dumb pipe. It doesn’t really do anything with the data, only distributes it. The criticism here is that almost no service is passive anymore, but that is perhaps not the directive’s fault?

On the E-commerce Directive, mr Larinkari says:

The liability regime of the e-Commerce Directive is often criticized for being outdated (dating back to 2001), having been drafted for a set of very different types of hosting service providers. As a result, its fundamental principles are increasingly being disregarded or derogated from in policy and case law, leading to increased fragmentation and legal uncertainty.

Old? Yes. Outdated? Maybe, but the principle of exemption from liability is hailed by tech companies as the most important principle of the “free and open” internet. Different types of hosting services? True, probably no-one thought this would be used for something like the “gig economy”. But does that mean the principles are wrong? Does it not make sense that somebody that actively changes the content thereby assumes some degree of responsibility? Hard to argue against, and words like outdated does not help. My guess is that bigger tech wants bigger exemptions.

So what does mr Ebay suggest the Commission does? Here’s the list, with my comments:

Make sure exemption from liability stays in place so there is legal certainty for platforms

Great, but also keep in mind the legal certainty for everybody else. Like users, content-owners, third-parties, whoever. There is no greater threat online to their legal certainty than these liability exemptions.

It makes sense that platforms do not need to manually monitor user activity for infringements

Not convinced, if Youtube manages to keep pornographic content off their service, why can’t it use the same method for everything else?

Targeted solutions should not be too broad

This is the opposite of the dare mr Larinkari made at our panel back when. I understand him, who wants them to be too broad? But also, don’t make them too narrow, because can we really make a special law for every problem online? Perhaps some general principles may work after all. Let’s say make the targeted solutions “balanced”, okay? That is the most popular word in Brussels anyways.

Good Samaritan principle

Oh, watch out with this one. Sounds great, but this Samaritan is completely different from the guy in the Bible. Normally, good Samaritan-laws protect you from lawsuits if you for example give first aid after a violent robbery and the victim doesn’t make it. In this case, platforms are not trying to help the victims but rather provide the tools for the crime. I have written more on this topic here.

I think I like the shopping list of problems the Commission wants to cover with this legislation. In addition to the points made by Samuel Larinkari and my comments above, here are some ideas that may be useful on the way:

Transparency – make sure the rules platforms write for themselves are transparent also for the outside world. (This include how the algorithms work!)

Accountability – rather than arguing that platforms should have as little responsibility as possible for what users do, how about facing up to the reality and start working toward fixing the problems that they have created? Yeah, internet platforms do a lot of great things, no argument there. They also hold the keys to things like… you know… the survival of liberal democracy. Be part of the answer.

Third-party oversight – being part of the answer is really hard, but there is help out there! Don’t say things like “the algorithm is so complex”, instead say “could you help us with this?”. Don’t say “we’re hiring 10 000 new moderators”, say “let’s we have independent third-party oversight”. That’s how classic media sorted it out. It’s easy if you ask for help, impossible of you don’t. (For the record, mr Larinkari has said none of these things. Others have.)

That’s it. 1, 2, 3. Now you can break for the weekend.

*) In case you haven’t experienced putting your tongue or lips to sub-zero exposed metal, the point is that you get stuck immediately and it’s an incredibly painful affair to pull yourself loose. (Hint: use hot water rather than muscle power!)