The DSM Strategy, from start-up to scale up

The European Commission’s Digital Single Market Strategy (DSM) will be one year old on 6 May 2016. The strategy, aimed at creating a harmonised digital market across the EU, consists of 16 initiatives to improve online access to digital goods and services, create an environment where digital networks and services can prosper and place digital as a driver for growth.

So what has the first year brought us, where are we now and what is coming up? In the first in our series of blogs on the DSM we take stock of what has already happened, what’s going on right now and what’s next.

Keep an eye out for our DSM infographic coming soon and stay tuned as we keep you up to date on all the twists and turns over the coming months! 

  • We need to talk – the Commission consults (May – December 2015)

Following the Communication on a DSM strategy in May 2015 the European Commission released 13 public consultations between June and December. The breadth of the DSM consultations reflected the ubiquitous nature of digital, with some of the hot topics including: copyright reform; e-commerce; geo-blocking; contract rules for digital content and online goods; and online platforms and the sharing economy.

With most of the consultations still ongoing the Commission made its first regulatory moves in December, with proposals for directives on contracts for the sale of digital content and online sale of goods and a proposal for regulation on the cross-border portability of online content. As these three proposals are now going through the European Parliament and Council, the debates are intensifying on issues such as: for how long can you access your subscribed services – e.g. Netflix – when you are travelling outside your home country (content portability); will data become a form of payment (contracts for digital content); and concerns over creating separate regimes for online and offline purchases (contracts for tangible goods).

  • Proposal time (December 2015 – onwards)

With many of the consultations closed at the end of 2015/early 2016, the Commission proposals are now coming thick and fast.  We have seen a proposal on spectrum in February. And then in April a “Digitising European Industry” package which includes action plans on e-government, ICT standards and cloud computing, and proposes a range of initiative designed to create the infrastructure and conditions for Europe to take advantage of big data, cloud services and next generation computing.

So what is next? In May the Commission will release proposals on geo-blocking, parcel delivery, consumer protection, the audio-visual media services directive (AVMSD), online platforms and the sharing economy. So how might these proposals look? The Communications on online platforms and the sharing economy are expected to take a light touch approach through examining how existing regulations may apply and promoting self-regulation, which will welcomed by the tech industry and nascent sharing economy!

The geo-blocking proposal aims to allow consumers to buy and access the same products and content online (and at the same terms) no matter where they are located in the EU. However we can expect heated debate on how this may affect territoriality of copyright and online retailers who unilaterally don’t sell across borders. Getting the balance right in the geo-blocking debate will not be an easy task as evidenced last year  with the difference in views on the issue between Vice-President Andrus ‘I hate geo-blocking’ Ansip and Commissioner Gunther ‘I hate my alarm clock at 5am’ Oettinger.

The proposals on geo-blocking, content portability and AVMSD will be followed up with an overarching set of copyright measures in September. These proposals, which have been pushed back from before the summer, should look at copyright exceptions, the implementation of the Marrakesh Treaty (to facilitate access to published works for the blind, visually impaired, or otherwise print disabled) and enforcement. Add to this the ongoing consultation on the ‘role of publishers in the copyright value chain and on the panorama exception’ and it’s evident that the ambitious plans to reform the copyright regime for the digital age in Europe will be one of the biggest challenges in the coming years.

A proposal from the ongoing consultation on the e-privacy directive is expected in the last quarter of 2016, along with actions on VAT and an initiative on the free flow of data.  Throw in the review of telecoms legislation in autumn and it’s clear that the work is just beginning!

  • What’s going on outside the DSM strategy?

Outside the DSM specific initiatives, it has been a transformative year in other areas relating to technology.

October 2015 saw the invalidation of the safe harbour agreement for transatlantic data flows, putting companies using the mechanism to transfer data to the US in a no-man’s land, scrambling for some sort of legal certainty. That may be coming in the form of the Privacy Shield agreed in February after intense negotiation between the EU and US, but which has been received with a luke-warm reception by the national Data Protection Authorities’ of Europe. The Commission is aiming for a final agreement by June but a challenge in the courts would not be a surprise!

And speaking of privacy, the EU General Data Protection Regulation (GDPR) was adopted by the European Parliament in April, 4 years after being put on the table by the Commission. It will officially come into law in two years’ time, and will provide a much needed update for data protection in the digital age. The length and breadth of changes about by the GDPR will leave public and private sector with a lot of work to do to comply.

And it’s not solely in the privacy field where the status quo is being challenged, in the past year, Competition Commissioner Margrethe Vestager has started investigations into Google, relating to their search results and their android operating system and into the big Hollywood studios (Disney, NBCUniversal, Paramount Pictures, Sony, Twentieth Century Fox and Warner Bros) and Sky UK and Ireland. The investigation looks at whether there is a contractual arrangement between the studios and Sky that prevent Sky from permitting EU consumers located elsewhere to access pay-tv services available in the UK and Ireland.

It will be interesting to see how these antitrust probes, GDPR implementation and the ongoing tax investigations into American tech giants in some member states will affect the DSM initiatives, particularly as they now start to go through the European Parliament and Council.

As EU policy and legislation try to keep pace with technological change, make sure you keep up with all the developments by following the Acumen DSM blog series, infographic and timeline on the DSM initiatives coming soon!

 

By George Niland, Account Manager with acumen public affairs focused on all things DSM