This is the December 2020 recap issue of the Centre for Democracy & Technology Europe’s monthly Tech Policy Brief. December was a busy month in EU tech law and policy, with the unveiling of the Digital Services Act, the Digital Markets Act, and the European Democracy Action Plan. We highlight CDT’s initial responses to these developments. You can subscribe here.
Event Thursday: ‘Schrems II: What Surveillance Reforms Are Needed To Preserve Transatlantic Data Flows?’
On January 14, CDT and the European Academy for Freedom of Information and Data Protection (EAID) will jointly organise a live-streamed event that will bring together leading voices from both sides of the Atlantic from academia, civil society, and the data protection community on the Schrems II debate. It will provide an opportunity for an in-depth discussion of key questions that arose with the latest CJEU decision, and the possible ways forward for the Biden administration. In particular, it will seek to answer what changes are needed to U.S. intelligence surveillance law and practice that would protect the rights of Europeans, and foster understanding among European policymakers of the surveillance reform options the U.S. has for promoting compliance with the Schrems II decision. ** View the full list of speakers and register for the event here. **
European Commission Publishes Digital Services Act and Digital Markets Act
On December 15, the European Commission published its long-awaited Digital Services Act (DSA) and Digital Markets Act (DMA) proposals. The former report involves a review of the 20-year-old e-Commerce Directive (eCD), and seeks to answer questions regarding how society should deal with the contemporary challenges linked to digital services. The latter addresses competition issues in the digital market and introduces rules for platforms that act as “gatekeepers”. In its first reaction to the DSA, CDT welcomed the European Commission’s commitment to bring more transparency to online content moderation, and its signals about protecting people from censorship and empowering them to opt out of surveillance-based advertisements. The DSA proposal also includes two key elements of rights-protecting online content regulation: the “Good Samaritan” principle, which helps protect rights in relation to user-generated content, and the prohibition against general monitoring obligations, which has been a cornerstone of the eCD. At the same time, CDT is concerned that the draft Regulation presents a confused vision for the role of online intermediaries, which puts non-discrimination, free speech, and democratic participation rights in peril. Read CDT’s full press release here.
European Commission Publishes European Democracy Action Plan
In addition to the DSA and DMA legislative proposals, the European Commission published its European Democracy Action Plan (EDAP) with the aim to empower citizens and build more resilient democracies across the EU. The Action Plan outlines a number of both legislative and non-legislative initiatives around three pillars: (1) promoting free and fair elections; (2) strengthening media freedom, and; (3) countering disinformation. The first pillar foresees new legislation on transparency of political advertising, revision of rules for financing European political parties, and a high-level event to address the challenges related to electoral processes. The second pillar promises publication of a recommendation on the safety of journalists, an initiative to curb the abusive use of lawsuits against public participation (SLAPPs), and measures to support media pluralism. Under the final pillar, the Commission outlines efforts to improve the existing EU toolbox for countering foreign interference, and to overhaul the Code of Practice on Disinformation into a co-regulatory framework of obligations and accountability of online platforms in line with the DSA. Read the first reaction of Iverna McGowan, CDT’s Director for the Europe Office.
CDT Europe in the News
CDT’s expertise on the public and human rights perspective of the DSA was in high demand. We spoke to Euronews and the BBC World Service about how the DSA can impact key tenets of democracy including equality, election integrity, and the rights to free association and expression.
CDT Europe Celebrates Human Rights Day by Reflecting on Ambitious EU Policy in the Digital Age
On December 10, international Human Rights Day, the EU held its 2020 EU-NGO Human Rights Forum, which involved a virtual conference on ‘The Impact of New Technologies on Human Rights’. CDT’s Iverna McGowan appeared in a video message around the event to discuss how human rights can be impacted by digital law and policy, at the invitation of the EU’s External Action Service and the Directorate General for Development. She also appeared at the event’s “Public Thematic Panel: Technology, Business and Human Rights”, and at the closing session, which are available to watch.
The EU recently adopted its new Action Plan on Human Rights and Democracy, which lays out its strategy on democracy and human rights in EU foreign policy for the next four years. The welcome focus on technology and human rights offers us an opportunity to imagine what an ambitious EU human rights foreign policy in the digital age might look like. CDT’s Iverna McGowan has three key messages and recommendations: (1) increased support to human rights defenders is highly welcome; (2) the EU should insist on full protection of encryption; and (3) counterterrorism legislation needs to be rooted in the rule of law and respect fundamental rights.
McGowan was also interviewed on Cloudflare TV on Human Rights Day, discussing what’s next for human rights privacy and data protection in Europe.
CDT Europe Joins High-Level Webinar on Transatlantic Perspectives on the DSA and DMA
Iverna McGowan, CDT’s Europe Office Director, spoke at a video conference organised by the German Marshall Fund on ‘Transatlantic Perspectives on the Digital Services Act & Digital Markets Act‘. The webinar featured Werner Stengg, senior member of the Cabinet of EVP Margrethe Vestager, and a panel of discussants from civil society, industry, and academia. It came the day after the DSA and DMA proposals were published, with the aim to facilitate transatlantic collaboration on rules of the road for the digital environment. McGowan brought in her first reactions on these two legislative proposals, and highlighted the need for stronger enforcement of GDPR in Europe as well as for a similar federal privacy legislation in the U.S. She also stressed that racial and social justice should be at the forefront of considerations, and that the responsibility on all stakeholders was high to ensure that impacted communities had a seat at the table as the proposals are further discussed. Watch the full panel discussion here.
CDT Europe Joins DOT Europe Webinar on ‘Unwrapping the DSA and DMA’
Iverna McGowan joined a DOT Europe webinar to speak about the two new proposals from the perspective of human rights and democracy. She stressed that CDT remains concerned that the DSA proposal raises rule of law challenges, because complex decisions about legality of speech are again being left to platforms. She also highlighted the need for governance and oversight that respects rule of law and human rights principles, and cited the challenge of ensuring that algorithms are audited independently. McGowan cautioned against the idea of making government agencies responsible as ‘trusted flaggers’ of content, which could have serious negative consequences in particular in EU member states where the rule of law is already weakened.