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The laws of markets and digital services

"The European Union has developed the Shaping Europe's Digital Future plan, which seeks to transform the EU to adapt it to the digital age and preserve individual freedoms"

Technology continues to change everyone's daily habits and transforms society. For this reason, the European Union (EU) has developed the Shaping Europe's Digital Future plan, which seeks to transform the EU to adapt to the digital age and preserve individual freedoms, and which identifies three basic objectives: technology at the service of people, a fair and competitive economy and an open, democratic and sustainable society.

This legal project will build a legislative structure from the following aspects:

  • La personal data protection, which constitutes the fundamental right most affected by the digital transformation.
  • La economy of the data, with the aim that all data from companies and public bodies serve to promote development through two initiatives: (i) the data Law, that it will promote the availability of data for innovation by promoting the altruistic transfer of data, facilitating its exchange and availability through the common European data spaces; and (ii) the data Governance Law, that will promote the reuse of public sector data.  
  • La artificial intelligence, with the European Commission's proposal, in April 2021, for a regulation to govern and balance innovation and digital development in the EU.
  • And lastly, the digital Services Package, approved by the European Parliament last July, formed by the digital markets law, that conceives the digital market as a service characterized by openness and fair competition, and balances the differences between operators, and the digital Services Law, that seeks the development and proper functioning of the Internet as a communication channel and tries to avoid the lack of control of the contents that circulate through it.

La digital markets law regulates the activity of the giant Internet platforms which it calls "gatekeepers»: operating systems, social networks, online markets, search engines or advertising networks, entrenched in the European Economic Area, with more than 45 million users and a turnover of more than 6.500 million euros per year. The beneficiaries of this rule are mainly European companies which it tries to balance against the enormous market influence of gatekeepers.

To achieve this goal, the digital markets law commitment to transparency and obliges these guardians to provide their European users with information on their activity, both professionals (who sell their services through them), and end users (consumers who use them to access the digital market).

For professional users, the digital markets law gives them the right to know how their offers and those of the rest of the entities on the platform work. This way they will be able to discover and react to anti-competitive practices.

End users are given the full ability to require the gatekeeper to deliver data about their activity on the platform (your user profile, search and purchase history, etc.) to any other entity for reuse for purposes commercial offers (usually to tailor commercial offers to your profile).

In short, the law of digital markets it deprives the guardians of access to the secrecy of the information obtained in their activity and of the details of the users' consumption in order to foster competition in digital markets.

La digital services law maintains intact the foundation that already defined in the year 2000 the directive of the services of the information society and electronic commerce: the safeguard that the "intermediary companies" are not obliged to control, in general, the content they manage and that, fulfilling certain conditions, They do not answer for the infractions committed with them (in the classic expression, it is about not killing the messenger). The intermediary companies are those that allow the Internet access and transmission of information over it, caching and data hosting.

All developed countries regulate these safeguards in a very similar way, considered a key element for the development of the Internet and the digital economy, and to guarantee freedom of expression and information.

However, the facilities for committing crimes and infractions on the Internet have made the safeguards the battle piece in the protection of intellectual property rights, in the prosecution of crimes against the dignity of persons (pornography and child abuse), of terrorism and hate, or in defense against disinformation (due to the danger to public health, during the pandemic, and to democratic coexistence given its influence on democratic elections or the breakdown of peace in certain territories).

The digital services law tries to limit these risks with new obligations of transparency and collaboration for intermediaries, but without affecting the freedoms of expression and information. It maintains its commitment to safeguards, already traditional.

But it does constitute a substantial change the imposition on the large platforms and search engines of very precise collaboration obligations with the EU authorities in the fight against illegal content on the Internet, in order to achieve, according to the law, a safe, predictable and reliable online environment that provides truthful information, effectively protects fundamental rights and upholds the principle of consumer protection.

Javier Aparicio

FinReg360 partner and state attorney on leave

Article originally published in the Blog Fide in the withfideinitial

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