Friday night’s political agreement on the Digital Services Act (DSA) is a good first step towards protecting people’s rights on the internet and to some extent limiting the immense power that Big Tech companies have over people and democracies.

EDRi welcomes the conclusion of a political agreement for the DSA on the night of 22nd to 23rd April. The DSA has the potential to serve as a global benchmark for how to regulate today’s hyper-centralised platform economy while also protecting people’s fundamental rights online, including freedom of expression and access to information, the rights to privacy, and non-discrimination.

In particular, we welcome the DSA’s appeals and redress mechanisms that will allow users to flag potentially illegal online content to hosting intermediaries, who in turn will be required to react through a transparent response process. Crucially, intermediaries will be able to carefully follow that process without being threatened by immediate legal liability at the expense of the rule of law, and without replacing independent judicial redress options for users.

“It’s relieving to see that EU legislators have learned from past mistakes such as the Copyright Directive, and in the DSA stayed away from creating a general monitoring obligation for online platforms,”

Jan Penfrat, Senior Policy Advisor leading EDRi’s work on the DSA.

EDRi also welcomes the first timid steps taken by the EU to limit the harmful business model of surveillance advertising and prohibit some of the most deceptive interface design practices deployed by online platforms against their users. Such a move by the EU was unthinkable just a few years ago. EDRi and other civil society organisations have consistently raised lawmakers’ awareness of surveillance ads as one of the root causes of online harms and polarisation. It is regrettable, however, that the political agreement has watered down this much-needed systemic change to such an extent that it is unclear how much it will actually bring visible positive change for people.

“At EDRi, we have advocated hard for the DSA to enable a real transformation of the online advertising industry—away from cheating and spying on users and towards a safer, privacy-respecting ad ecosystem. While the DSA compromise will help phase out some of the worst practices of ad-driven online platforms, it can only be the starting point for more profound change,”

Jan Penfrat

For example, the DSA’s prohibition of using highly sensitive personal data to target people with surveillance ads will be limited to online platforms only, and therefore leave the vast majority of ad networks embedded in common websites—as well as the data extraction industry behind it—untouched. Similarly, the prohibition of deceptive interface designs will likely exclude the most pervasive and annoying ones: cookie and tracking banners.

“Although the DSA’s final ad regulation is not perfect, at EDRi we are proud that we were able to help bring a ban of surveillance ads into the mainstream political debate in the EU”

Diego Naranjo, Head of Policy at European Digital Rights.

As a human rights organisation EDRi has been very concerned about the new Crisis Response Mechanism that was added to the DSA at the 11th hour as a response to the Russian war of aggression against Ukraine. Temporary crises should not lead to permanent infrastructures of state control. While earlier versions of this mechanism would have given the EU Commission unchecked executive power to unilaterally declare an EU-wide state of ‘digital emergency’, it is not least thanks to a strong advocacy effort from EDRi and many other civil society organisations that, according to press reports, negotiators eventually built in a requirement for the Commission to obtain the green light of national independent platform regulators first.

“We celebrate today a first step to reduce the power of Big Tech companies, even though we would have preferred that both the DSA and DMA were more ambitious, the compromise reflects what was possible given the current political majorities. We will work towards advancing safeguards and rights during the implementation of the new rules and support strong enforcement by regulatory authorities. By doing so, we also aim at supporting real alternatives to the currently dominant surveillance business model.”

Diego Naranjo

EDRi and its member organisations will continue to advocate legislation, policies and practices that uphold people’s rights and that shape the internet as an open, fair and inclusive digital environment for everyone.

READ MORE:

• EDRi: A new crisis response mechanism for the DSA (2022)
• EDRi: Abolish manipulative dark patterns and creepy online ads, ask 72 civil society organisations (2022)
• EDRi: Surveillance-based advertising: An industry broken by design and by default (2021)
• EDRi: Digital Services Act: The EDRi guide to 2,297 amendment proposals (2021)

Thousands of people took action in the days before the Digital Services Act (DSA) vote in the EU Parliament, asking Members of the EU Parliament (MEPs) to end surveillance advertising.

As part of the Platform Power campaign, we have coordinated with many civil society organisations and raised our voices for stronger laws against the business model of Big Tech online platforms. Together, we succesfully pressured law-makers to put people at the center of the debate.

On 20 January 2022, the Members of the EU Parliament (MEPs) decided BigTech platforms should no longer be allowed to use surveillance ads on children and have significantly limited surveillance ads for adults. More, the EU Parliament voted BigTech platforms should be prohibited from using ‘dark patterns’, so called manipulative interfaces 

Banning surveillance ads

See below how our representatives in the EU Parliament voted on the restrictions to surveillance ads.

Despite the fact that MEPs did not vote for a full ban on surveillance ads, they voted a strong amendment that severely restricted the use of people’s most sensitive personal data to target them with paid messages. In detail, the amendment prohibits the targeting or amplifications techniques that process, reveal or infer personal data of children or the sensible data of adults – for the purpose of displaying advertisement. Such sensible data includes religious beliefs, sexual orientation and racial or ethnic origin.

Prohibition on ‘dark patterns‘

MEPs also agreed to prohibit the use of ‘dark patterns’, so called manipulative interfaces that are designed to trick users into unintentionally consenting to sharing their personal data. Dark patterns are systematically used by Big Tech platforms like Facebook and Youtube but also by countless apps and websites to push users into consenting to surveillance based advertising.

See below how our representatives in the EU Parliament voted on ending ‘dark patterns’

People power makes change happen

The actions digital rights activists have taken ahead of the vote have been crucial for this success. We cherish the energy you put into making the digitalised society one based on fairness, equal opportunities, choice and justice.

The January DSA vote in the EU Parliament emphasised important protections for our rights – also in regards to people’s freedom of expression online and right to secure communications.

Moving ahead, the EU negotiations on how to regulate BigTech go into trilogues – a process notorious for its opacity and lack of democratic scrutiny. Do you want to know more about how the EU works and why the trilogues are special?

Let us know with a vote in the Twitter poll below.

Today, 15th of December, the European Parliament has approved its position on the Digital Markets Act (DMA). While unfortunately, it scales down the DMA scope by limiting who will be considered a gatekeeper, the Parliament position adds a number of notable improvements from a digital rights perspective that help challenge digital gatekeepers’ overwhelming power.

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In particular, European Digital Rights (EDRi) welcomes the addition of interoperability requirements for instant messaging and social media services provided by gatekeepers. Such core service interoperability is a pro-competitive tool that can play a major role in ensuring market contestability, innovation, competition and the empowerment of all of us.

“Enabling providers of smaller social media and messenger apps to interoperate with gatekeeper services is an important milestone in bringing back real choice for people.”

– Jan Penfrat, Senior Policy Advisor, EDRi.

While we welcome the Parliament position’s clear prohibition for gatekeepers to combine or cross-use personal data without consent, we call on the Rapporteur to close potential legal loopholes in article 5.1(a) that could allow gatekeepers to circumvent their legal obligation under GDPR to request consent for each processing purpose.

We support the new prohibition of dark patterns and encourage negotiators to ensure that clearer language is used to describe how regular dark patterns look like as has been the case in the European Parliament IMCO Committee’s position on the Digital Services Act. Dark patterns are user interface designs deliberately built to push users into making a certain choice that they would otherwise never have made, like the way most cookie banners work today.

“We are very glad to see that the Parliament is taking a first step towards a fair and interoperable market. It will now be important to put the objective of ending corporate concentration into a clear and enforceable language.”

– Christoph Schmon, International Policy Director, EDRi member, Electronic Frontier Foundation (EFF).

Just like the original European Commission proposal, the Parliament’s DMA position contains a number of additional important “dos and don’ts” that will increase user freedom and protection, as well as hopefully lead to a more diverse digital environment for all. For example, the freedom to install and remove the apps people actually prefer as well as to choose the best app stores rather than the one proscribed by the gatekeeper.

EDRi also very much welcomes the Parliament’s clear commitment to enabling end-users, consumer groups and other civil society organisations to support the DMA’s enforcement regime with a right to lodge complaints, provide input to the European Commission’s own investigations, and access documents relating to ongoing cases.

“Participation of end users and civil society organisations in the monitoring and enforcement of the DMA is fundamental to its successful implementation and to redress the imbalance of power between individuals and big platforms.”

– Tomaso Falchetta, Global Policy Lead, EDRi member, Privacy International.

The European Parliament and the Council are planning to commence trialogue negotiations for the Digital Markets Act in early 2022, expecting to finalise the Regulation by the spring.