The EU Digital Single Market: telecoms and online platforms

On 6 May 2015 the European Commission published its “Digital Single Market Strategy for Europe”. The Commission’s proposals are aimed at producing a true digital single market, one with – in President Juncker’s optimistic words – “pan-continental telecoms networks, digital services that cross borders and a wave of innovative European start-ups”.

Read more about the impact on telecoms and online platforms below.

The EU Digital Single Market Strategy is an area we will continue to monitor closely. Click here to read our latest updates and keep up to date with the developments as they happen.

Telecoms

The Commission’s Strategy paper sets out the Commission’s intention to propose an ambitious overhaul of the current telecoms regulatory framework in 2016, presumably after the adoption of the Telecoms Single Market package (which is now mainly focused on harmonised rules for net neutrality and substantial progress on roaming charges).

Through tackling fragmentation in regulation and ensuring regulatory consistency, the Commission aims to create a level playing field and a genuine single market for electronic communications which stimulates investment in infrastructure. The fair and future proof regime will apply to all services, including VOIP and over-the-top services. The reform will also focus on a consistent single market approach to spectrum policy and management. Additional consideration will also be given to broadband availability in inaccessible areas as part of a review of the Universal Services Directive.

Jeroen Lub, Partner, Osborne Clarke, Amsterdam, says: “A strong Telecoms Single Market is essential for the Digital Single Market. The digital single market depends on the availability of high-speed and affordable fixed and mobile broadband networks throughout Europe, ending roaming charges and net neutrality.”

Online platforms

One of the Commission’s main priorities in its Strategy paper appears to be the scrutiny of online platforms. The importance of the role of platforms in the digital and online world – together with their ability to participate in and dominate multiple sectors and their increasing market power – have put them front and centre of the Commission’s mind.

The Commission has committed to carrying out a comprehensive “assessment’” (terminology which has been toned down from “investigation”, used in a previous draft version of the document) into the role of platforms sometime in 2016. From the examples given in the Strategy paper, the scope of the assessment appears wide and potentially all-encompassing – covering issues such as:

• transparency (for example, of search results);
• use of information they collect;
• relations between platforms and suppliers;
• constraints on the ability of individuals and businesses to move from one platform to another; and
• how best to tackle illegal content on the internet.

It is also likely that the proposals to harmonise not only the duty of care relating to illegal content on the internet, but the responsibilities for monitoring it and the procedures for removing it, will bite on platforms which allow or facilitate access to content. Numerous other areas in the Strategy paper touch on platforms, including the provisions on geo-blocking and on copyright, on which see here.

John Davidson-Kelly, Partner, Osborne Clarke, London, says: “All of this points to the conclusion that digital platforms can expect to be the focus of increased scrutiny by the Commission for some time. It is not clear what constitutes a “platform” for the purposes of the “assessment” or whether a platform must reach a certain size or scale before it comes under scrutiny from the Commission. The wide scope of the Commission’s “assessment” is alarming for any organisation which may potentially fall within the scope of this exercise.”