A European digital public sphere—legal and policy implications

The EU has hitherto applied conventional market-regulating tools to the online arena. It’s time to adopt a human-centred approach.

The European Union provides a unique regulatory environment—supranational, affecting the lives of nearly 448 million people, but also national, since the member states actively participate in shaping it. It is an especially important framework in responding to problems which have a global impact, such as the way Big Tech has taken over online spaces for public debate.

Globally more than two-thirds of all internet users use ‘social media’ and that includes almost all young people in the richest countries, many of them European. Europeans thus make use of a digital public space which in reality is privatised.

As the platforms dominating the global market are run by United States and Chinese companies, their functioning is shaped by the regulatory and social environment of those jurisdictions. This does not reflect European privacy standards or principles important to Europeans, ranging from freedom of expression to consumer rights. So there is a good argument for creating an online public space stemming from European values and policies.

Market perspective

When it comes to imagining a holistic framework which could shape the online experience of European denizens, however, so far the EU has been limited in ambition, narrowing it down to the concept of the digital single market. This market perspective restricts the scope of intervention, as it omits all the non-market possibilities of interaction and building a good online experience. It has been associated with directives on copyright, audiovisual media services and regulations, terrorist content and artificial intelligence, as well as the Digital Services Act (DSA) and Digital Markets Act (DMA).

These do impinge beyond market considerations, as they shape freedom to receive and impart information, the right of access to a court, privacy and personality rights. They can also be seen as a concerted effort to create a European version of the internet. Yet these laws, realised or proposed, do not significantly change the status quo. Rather they impose unified rules on key actors, while insufficient to carve out effectively an agora governed by the people for the people.

How can the European agenda be expanded beyond market considerations? EU legislators are bound by the Treaty on European Union and the Charter of Fundamental Rights and this is where a renewed mandate for creating the European digital public sphere (EDPS) should be sought. To put citizens and not companies at the centre, existing laws should be revised as well.

Unfortunate logic

Legislators must resist the pressure from the creative industry to create new copyright or related rights as soon as technological developments provide new possibilities of access to cultural and creative activity. This unfortunate logic underpinned the copyright directive, which advanced, among other things, new rights related to text- and data-mining and a related right enabling press publishers to request payments from platforms when they link to their news sites. Together with other provisions, such as content-filtering requirements for platforms, this rendered it counterproductive to open up new public spaces online. It also stems from a binary perspective where cultural production and creative exchange happen between market actors, omitting the contributions of internet users.

While it is true that most of the media and news outlets cannot exist without adequate financing of their work, it is wrong to expect that the problems created by the business models of platforms based on personal data commodification can be solved solely by increasing transfers to the publishers. As long as journalism is dependent on ‘social media’ intermediation it will be at the mercy of the platforms providing it.

To ensure that the EDPS can thrive, these barriers will need to be removed, including the excessive copyright protection over machine-reading. Sui generis rights for databases where not an original creation should be abolished as well: these limit access to datasets otherwise not protected by copyright.

Another fundamental issue is geoblocking, a market practice of limiting access to services and goods in some member states while allowing it in others, which the EU considers discrimination between EU customers. It is hard to imagine a smoothly functioning EDPS with geoblocking practices. The EU’s geoblocking regulation, adopted in 2018, does not regulate any copyrighted content. Its recent review however ‘considers the possible extension of the scope of the legislation, including with regard to copyright-protected content (such as audio-visual, music, e-books and games)’.

Levelling the playing-field

The EU shouldn’t aim at recreating an online ecosystem with a small number of big platforms concentrating power, resources and data, locking in users through network effects. Rather, any new legislative proposals should aim to level the playing-field for small and not-for-profit players who can compete with variable offers, prioritising different values important to different users (efficiency, privacy, personalised access to content and so on).

This array of services could work as a general infrastructure which does not bind intermediaries into competition with ‘surveillance capitalism’ only with strong interoperability requirements. The Digital Markets Act, currently going through the legislative process, provides an opportunity to introduce such requirements into the framework regulating gatekeepers. This approach should be more widely adopted, to increase competition and create a public space in which private actors can provide points of access as well.

The need to implement directives in national legal frameworks creates a problem by diversifying conditions of liability, or exemptions from it. Since the member states get to shape copyright domestically, for example, we end up with 27 different frameworks. These include a patchwork of copyright exceptions and limitations benefiting users in access to information, knowledge and culture.

The EU needs to ensure there is a concerted effort to harmonise these exceptions. And the default for future legislative initiatives should be a regulation binding member states directly, to remove differences of interpretation via national laws.

Political will

One cannot envisage all the cases where national legal frameworks, including constitutional systems, will limit the ability to introduce a continental landscape enabling the EDPS to thrive, whether unified by regulations or harmonised by concerted implementation of directives and other international laws. A legislative deus ex machina is required—the generation of political will.

How much to integrate is largely a political decision as to future European direction. Either national rules will be deemed to respond well to perceived political objectives in member states, at the cost of a fragmented European space, or there will be less laisser faire on the national level but more debate and co-ordination and a single European space.

Since many aspects of such a strategic push need to be considered and evaluated, there is a role for expert advocates and civil society to manufacture such readiness on the political level. This is a difficult task, given rising scepticism towards further EU integration expressed by developments such as ‘Brexit’ and the popularity of political parties dismissive of the European project.

On an immediate practical level, however, there is room for national legislative powers and regulators of all kinds, vis-à-vis telecommunications, privacy and potentially in the realm of obligations imposed on platforms by the DSA and DMA. To ensure that the EDPS can be brought about, a robust network of bodies, sensitive to national particularities but able to work effectively on the supranational level, is needed.

Human-centred approach

The ideas required to enrich the European project—to champion a human-centred approach in addition to the market-focused one—have been emerging on many sides of the public debate over the future of the EU. One of the most immediate tools has been the Better Regulation agenda, a framework aiming to strengthen the quality of law-making in the union. Within the framework, a comprehensive codification of existing laws, supplemented by missing pieces as explained above, could go a long way.

There is also inspiration to be drawn from new concepts. Shared Digital Europe has been developed by activists (disclaimer: I was part of that group). Its vision is based on four principles: enable self-determination, cultivate the commons, decentralise infrastructure and empower public institutions. The individual pursuit of online happiness is combined with communal and shared fulfilment.

These are aided, as explained in the Shared Digital Europe strategy, by the online presence of public institutions on one side and healthy, sustainable private infrastructure on the other. From the perspective of the EU, this encompasses both the market and non-market components of societal interactions online. It provides an indispensable context to the EDPS.

Finally, the challenge is to galvanise citizens to support solutions that benefit their autonomy and social cohesion at the same time. This includes governance over their data and online persona, as well as shared, community-led governance over content moderation, whenever possible. Ensuring such support requires a grand narrative that is attractive to internet users and goes beyond the legalese of ‘Eurospeak’.

The notion of a networked public sphere where citizens are at the centre should underpin that narrative. Principles of collaboration and decentralisation should be illustrated in an approachable way, for example by showcasing how various communities online practice constructive deliberation.

This is the second article in a series on a European digital public sphere, supported by the Friedrich Ebert Stiftung with an eye to its Digital Capitalism conference from November 15th to 19th. All articles in this series are published under a Creative Commons licence.