Eurocare input to the Digital Service Act consultations

The European Commission has announced a Digital Services Act package to strengthen the Single Market for digital services and foster innovation and competitiveness of the European online environment – see https://ec.europa.eu/digital-single-market/en/digital-services-act-package

Given Eurocare’s profile, comments are given to areas in which it possesses expertise and interest. As a general comment Eurocare would like to support the European Commission’s remarks regarding an increasingly fragmented legal landscape and the need for better alignment and simplification of the legal provisions governing the digital landscape.

Eurocare believes that it is the European Commission’s obligation to lay down clearer, more stringent, harmonised rules for digital actors’ responsibilities in order to increase citizen’s safety online and protect their rights.

Eurocare would like the DSA to focus on safety of vulnerable users, children and young people. Special attention needs to be given to areas such as online advertising as they are a core feature (and heart of the business model) for most online platforms and currently enjoy competitive advantage compared to traditional media.

The legal framework for digital services has been unchanged since the adoption of the e-Commerce Directive in the year 2000. Ever since, this Directive has been the foundational cornerstone for regulating digital services in the European Union. Since then new services, technologies and business models have brought many opportunities in the daily life of European citizens, they have also created new risks to citizens and society at large, exposing them to a new range of illegal and harmful goods, activities or content.

The new Digital Services Act package is planned to modernise the current legal framework for digital services by means of two main pillars: First, the Commission would propose clear rules framing the responsibilities of digital services to address the risks faced by their users and to protect their rights. The legal obligations would ensure a modern system of cooperation for the supervision of platforms and guarantee effective enforcement. Second, the Digital Services Act package would propose ex ante rules covering large online platforms acting as gatekeepers, which now set the rules of the game for their users and their competitors. The initiative should ensure that those platforms behave fairly and can be challenged by new entrants and existing competitors, so that consumers have the widest choice and the Single Market remains competitive and open to innovations.

The European Commission has an ongoing consultation on a “Digital Services Act” (DSA) which could review the fundamentals for how digital services operate in Europe. The President of the European Commission, Ursula Von Der Leyen mentioned in her political guidelines her intention to upgrade, through the DSA, the EU’s “liability and safety rules for digital platforms, services and products”. This could be an opportunity to clarify EU law, strengthen online rights and promote innovation.

Eurocare would strongly advocate the need to include harm into the legislation – not only illegal content. Given the burden alcohol places on people’s health and its role as a risk factor for cancer, EU should ensure policy coherence between provisions for online advertising of alcohol (through AVMSD, DSA and other legal instruments) and its health policy goals.  

In Eurocare’s view the DSA should:
1. Include the notion of harmful content (not only illegal) as one of its core principles; this should include content harmful to physical health (i.e. unhealthy food, alcohol, tobacco, drugs, gambling) as well as mental health  
2. Alignment of provisions regarding alcohol advertising in the digital landscape with Article 22 of AVMSD (for Television advertising and teleshopping). Revised AVMSD promotes codes of self-regulation in area of online advertising however majority of current codes are vague, and alignment would provide better legal certainty. Furthermore, currently the traditional media i.e. national tv stations are placed at a competitive disadvantage compared with the US tech giants i.e. Facebook, YouTube in terms of alcohol advertising. A solution would be to ensure that players in the digital area must follow the same rules.  
3. Address the suitability of the current EU legislative framework to deal with such developments as: a) 'integrative advertising' methods which rely on the mixing of commercial and non-commercial content b) advergames c) digital influencers and vlogging advertising (including product placement, sponsorships, editorials and other forms of vlogging advertising)  
4. Improved enforcement mechanisms for cross-border disputes. Member States should be able to adopt laws protecting consumer interests.  
5. Fragmentation in classification of digital players (intermediaries) and their responsibilities, for instance ‘gate keeper’ platforms with paramount importance to competition should be held to standards reflecting their market power. The current exemption in Art 14 of E-Commerce directive is not fit for purpose to determine platform liability. A platform which obtains income from alcohol advertising should have a duty of care for violations and not benefit from liability exemptions. This would create a double protection mechanism where advertiser and the medium on which it advertises would ensure alcohol advertising is not targeting children and vulnerable groups (i.e. previous heavy drinkers).  
6. Explore the possibilities to limit cross platform profile sharing (creation of ‘super profiles’) especially in areas of sensitive data such as health (i.e. health apps data being combined with social media profiles for commercialisation purposes)