Today, ARTICLE 19 alongside Amnesty International, the British Institute of International and Comparative Law, Electronic Frontier Foundation, Civil Liberties Union for Europe and the Open Society European Policy Institute submitted their response to the Body of European Regulators for Electronic Communications’ (BEREC) public consultation on its Draft Report on ex ante regulation of digital gatekeepers. We support BEREC’s calls to incorporate into the Digital Markets Act (DMA) reinforced measures to strengthen competition among gatekeeping platforms and to better protect end-users’ rights. We also support the call to guarantee the openness principle throughout the digital environment, and to have open-internet type requirements for the application layer, in addition to the network layer, in order to avoid bottleneck power over the access to content and applications. We make additional proposals on how the DMA should be improved to protect freedom of speech and human rights.
In March 2021, BEREC opened a public consultation on its Draft Report on ex ante regulation of digital gatekeepers, the draft response to the DMA proposal issued by the European Commission, which aims to address gatekeeping platforms, to create more contestability and to ensure fairness in digital markets. We welcome the attention BEREC is dedicating to the topic and find that BEREC’s views are important for bringing a much-needed technical and historical expertise to the discussion. We also believe it is necessary to avoid conflicts between the DMA and existing rules and frameworks that target players in the internet value chain. On the contrary, synergies should be sought, and consistency ensured with regards to regulatory principles and objectives.
In our submission, we make the following recommendations:
- The DMA should guarantee an open and inclusive dialogue. As the DMA will have a strong impact on end-users’ rights, on the digital public sphere, and finally on our democracy, it is important that end-users and civil society organisations are provided adequate space and meaningful channels to contribute to the debate and the implementation of the regulatory framework. Moreover, providing them with proper mechanisms to participate will give greater legitimacy to the new regulatory regime, and it will enrich the regulators’ evidence base and improve the quality of their analysis.
- The DMA should strengthen inter-platform competition and better protect end-users’ rights. Regulatory measures in the DMA should be reinforced, extended or added both to rebalance the relationships among the gatekeeper and its business users and end-users, but also to facilitate the possibility for competitors to enter a core platform service (CPS) market and/or to expand over several CPSs. Inter-platform competition translates into choice for end-users, and choice for end-users supports inter-platform competition. If end-users have choice, this creates space and incentives for new players to tap into the existing (currently locked-in) user bases of gatekeepers. That reduces barriers to entry for new players considerably, notably in markets with traditionally strong network effects.
- Interoperability is an efficient way to achieve more contestability and more choice for end-users. Full mandatory interoperability (with regards to both core and ancillary services) for gatekeepers bears the potential to facilitate the creation of completely new markets and to incentivise innovation. In addition, it empowers end-users providing more alternatives with regards, for example, to their communication channels.
- The control of the access to the content and application layer of the internet stack should not be left in the hands of a few private companies. Bottlenecks at the application layer should be remedied. A handful of companies with bottleneck power should not be able to make unilateral decisions about the availability, for end-users, of a an application or content in an environment characterised by lack of clarity and legal uncertainty.