EU: Joint letter on protecting end users’ rights in the Digital Markets Act

EU: Joint letter on protecting end users’ rights in the Digital Markets Act - Digital


ARTICLE 19 and a coalition of digital rights defenders sent the following open letter to Members of the European Parliament, including Chairs and vice chairs of IMCO and ECON, and Rapporteurs and (so far known) Shadow Rapporteurs for Digital Markets Act (DMA) and Digital Services Acts (DSA).

Dear Members of the European Parliament,


We, a collective of civil society organisations and digital rights defenders in the EU, welcome the
European Commission’s focus on improving the way digital markets work. We also share its
concerns about gatekeeper platforms’ behaviour in many of these markets that undermines
competition and market contestability. We equally share the Commission’s assessment that this
leads to ‘inefficient market outcomes in terms of higher prices, lower quality, as well as less choice
and innovation to the detriment of European consumers.’ (Commission Staff Working Document,
SWD(2020) 364 Final, p.1)

However, we believe that the proposal for a Digital Markets Act (DMA), presented by the European
Commission on 15 December 2020, fails to respond adequately to the challenges at stake and leaves
some important gaps that need to be filled.

Too little focus on end users

Various practices by gatekeepers exploit end users excessively. These practices not only harm end
users’ economic interests as consumers and customers, they also have a negative impact on users’
civic rights. In particular, individual gatekeepers can dictate a quality standard in the market that
affects, among other things, the protection of users’ data, their freedom of expression and their right
not to be discriminated against.

However, the European Commission’s proposal totally fails to consider this perspective. Indeed,
there is little mention of end users’ perspective in the proposed Regulation, and the same is true for
the accompanying package (impact assessment and explanatory memorandum). On the contrary, the
main focus is on the relationships between core platforms and their business users.

This approach is all the more difficult to justify if one considers that the protection of end users
from various kinds of exploitative conduct by companies in strong market positions is traditionally
one of the main goals of competition and pro-competitive measures. Unfortunately, the Commission
has long since concentrated excessively on the economic aspects of relationships between
competitors. This is a failure that urgently needs a fix. EU regulators should be challenged for
wanting to protect business users more than end users in the Digital Single Market. We believe this
to be a substantial gap, and we call on the European Parliament and on the EU’s Council of
Ministers to fill it.

DMA would leave power concentrated in the hands of a few gatekeepers

According to the executive summary of the Impact Assessment Report, the DMA proposal should
‘foster the emergence of alternative platforms, which could deliver quality innovative products and
services at affordable prices.’ (p. 2). However, the proposal itself falls short on this promise. On the
contrary, it seems to focus on creating conditions for more competition at the business users’ level,
rather than on creating conditions for more platforms to enter these markets or giving end users
more choice between platforms.

In other words, the proposal aims to protect business users from, for example, self-preferencing
behaviour by vertically integrated platforms, the imposition of clauses to ensure uniform prices and
the mandatory use of certain platforms’ services in their relationships with end-users. But this
would do little to create the conditions to restore effective competition at the platforms’ level. An
extreme example of this approach is Article 6(1)(f), which would require gatekeepers to provide
access and interoperability only with regard to business users or ancillary services. Rather than
fostering the emergence of new platforms, this provision has the potential to increase the systemic
dependence of business users and ancillary services’ providers on the core platform, whose position
remains uncontested and secured in the its primary market(s).

By narrowing the focus on contestability and entry for business users, the DMA proposal seems to
accept the status quo for core gatekeeper platforms. But why does it do so? Why does the
Commission leave basically untouched such a strongly centralised environment, which, as the same
Commission has repeatedly said in the past, raises structural competition problems? Moreover, as
we highlight, leaving this strongly centralised environment untouched is surely not the best solution
for individuals because it provides a few platforms with too much power over users’ rights and over
the flow of information in society. We strongly disagree with the Commission’s approach, and we
therefore challenge the Commission to at least explain why they have adopted it. We also call on the
European Parliament and on the Council to change this approach, and to work on more ambitious
solutions to stimulate the emergence of alternative platforms.

Discussion of the DSA and DMA cannot be kept separate

The Digital Services Act (DSA) and DMA have been conceived and presented as two
complementary legislative proposals to together tackle the complex challenges facing the EU’s
Digital Single Market. These challenges are economic, social, and political in nature and adequately
solving them is key to guaranteeing the future of EU democracies and respect for the EU’s
fundamental values. To tackle all the main challenges we face today we must look at digital
services, and the markets where they are provided, together. The goal of a fair, open and free digital
environment can only be achieved if service providers respect certain quality and human rights
standards, and if markets are no longer controlled by a handful of gatekeepers. The EU needs a
holistic approach, strong coordination and complementarity between the rules for services and those
for markets.

Therefore, we call on the European Parliament and on the Council to adopt this holistic approach to
the DSA and DMA proposals with a view to enhancing synergies, avoiding conflicts and filling
gaps. We also call on civil society and on other relevant stakeholders to engage as much as they can
in the debate about both proposals. In fact, the future we desire for the EU digital sphere depends in
equal measure on the way we will regulate digital services and on the way we will regulate digital

Your sincerely,

Access Now
Amnesty International
Association of European Journalists
Association of European Journalists Belgium
Bits of Freedom
Civil Liberties Union for Europe
Cultural Broadcasting Archive
Electronic Frontier Foundation
Eletronisk Forpost Norge
European Digital Rights
Free Knowledge Advocacy Group EU
Free Press Unlimited
Global Forum for Media Development
Homo Digitalis
IT-Pol Denmark
Lie Detectors
Media Diversity Institute
Open Society European Policy Institute
Ossigeno per l’informazione
Panoptykon Foundation
Privacy International
RNW Media
South East Europe Media Organisation
Zavod Državljan D