The European Commission opened a public consultation on 25 September on “regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy”.
The consultation represents a unique opportunity for online operators to present their views to the European Commission during the preparatory stages of upcoming EU policy and legislation. Indeed, the Commission considers that those affected by laws understand better than anyone else what impact they have, and can provide useful evidence to improve them. Accordingly, the public consultation is the main tool adopted by the Commission to listen more closely from stakeholders when preparing a legislative proposal or in the context of the evaluation of existing policies and laws. It is therefore extremely important for stakeholders potentially affected by the upcoming legislation to express their views on key aspects of the Commission’s impacts assessments. The overall results of the consultation are strongly taken into account by the European Commission in the drafting of the concerned proposals as well as by the European Parliament in the following steps of the legislative procedure. The consultation will remain open until 18 December 2015.
The consultation focuses on some of the 16 initiatives included in the strategy for the implementation of the Digital Single Market for Europe, adopted by the European Commission on 6 May 2015 (find attached the Press Release). As further explained below, the consultation aims to undertake a comprehensive analysis of the role of online platforms and intermediaries. It also focuses on data collection and processing, cloud computing and collaborative economy.
The Commission strives for receiving contributions from online platforms and businesses using an online platform to provide services; public authorities; research institutions and think tanks. However, the consultation is open to individual citizens as well as to associations or trade organisations representing consumers, businesses or civil society.
The views expressed in the consultation documents do not state an official position of the Commission and the definitions provided thereby are for the purpose of the consultation only. The Commission reserves the right to use differing definitions under current or future European law.
The Commission considers that the emergence of online platforms is beneficial. However, the way that they operate raises issues that require further exploration. The consultation therefore seeks the opinion of the stakeholders on the appropriate definition of online platforms.
A second group of questions focus on how online platforms collect and use data collected from the users and the level of transparency that they adopt in this case.
Furthermore, the consultation includes questions about the bargaining power of certain platforms in commercial negotiations with other market players, namely SMEs and content providers, including a question aimed at understanding whether certain platforms involved in content distribution use the limitation of liability provided under article 14 of the so-called E-commerce Directive 2000/31.
Moreover, the consultation contains questions focused on consumer protection.
Online intermediaries and liability for illegal content
An important part of the consultation concerns the issues related to the liability regime of online intermediaries, with a particular focus on the liability exemption provided by Article 14 of the E-commerce Directive. These issues have been already investigated by the Commission with two previous consultations in 2010 and 2012, which highlighted some difficulties on the interpretation of its Article 14.
However, the Commission considers that they need to be resubmitted to the general public in order to take into consideration the technological, legal and political developments occurred in the last five years. The questions contained in this section specifically assess the definition of intermediaries, the limited liability regime provided under the E-commerce Directive, and whether action is needed to design appropriate duties for intermediaries and procedures to detect and prevent illegal activities.
Data and cloud
The consultation also requests the views of the stakeholders on location restrictions, access and use of data as well as on the development of data markets and access to public sector information for re-use. Specific questions also concern the access and re-use of scientific data and the liability regime of free flow of data and internet of things. Furthermore, the consultation questionnaire includes a section on personal data management systems.
Another section of the questionnaire aims to collect the views of stakeholders on the regulatory environment and the effects of collaborative economy platforms on suppliers, innovation and consumer choice. The main question is whether EU law is fit to support this phenomenon and whether the existing policy is sufficient to support the development of this market.
The consultation defines the collaborative economy as being able to links individuals and/or legal persons through online platforms that allow them to provide services and/or to share tangible and intangible property. According to the questionnaire, typical examples of collaborative economy platforms provide transport services (including the use of domestic vehicles for passenger transport and ride-sharing), accommodation and professional services.
Preiskel & Co would be delighted to assist you in submitting comments to the present consultation. Please consider us at your disposal should you need further information or advice on how to submit comments to the consultation.