Copyright and Internet

The new European Commission, a nightmare for dominant online platforms?

Schermata 2019-09-10 alle 12.40.16

The next European Commission may cause headache to dominant OTTs in Europe. In fact, the allocation of the portfolios announced today by the appointed President Von der Leyen reveals the intention to supervise and intervene in the competitiveness of digital sector even more effectively than in the past.

Firstly, Margaret Vestager, who in the last 5 years lead landmark cases against dominant online operators (Google, Apple, Amazon, Qualcomm ecc) got confirmed in the portfolio for competition. In addition, she was granted a Vice-president role for the entire digital sector, so as to be empowered and supervise all other commissioners operating in the digital area. This means that she will have even more effective powers in case she intends to take measures against dominant OTT. However, it should not be about higher fines (the current powers are already sufficient), while about the possibility to enact general rules targeting anticompetitive behaviors at origin, so that to make antitrust intervention superfluous. It could be about interoperability, transparency, conflict of interests ecc. .

Secondly, the digital agenda portfolio has been moved under the control of Sylvie Goulard,  who will also lead the Internal Market directorate. This means that a French representative will play a fundamental role in the likely revision of the e-commerce directive and in setting the future digital framework via the announced Digital Service Act. It is not a secret the France intends to find a way to address the predominance of US online operators in the European market. The appointment of a French personality for the Digital Agenda portfolio reminds the appointment of the German commissioner Oettinger in 2014 for the same position. That choice reflected the fear and the obsessions of the German government vis-à-vis Google. The most significant result was, at the end, the copyright directive, a very controversial legislation whose effects may however impact the Internet in general rather than dominant operators.  It will be interesting to see how the new digital commissioner will be able to distinguish the fight against dominant operators from the general rules of the Internet.

To sum up: dominant OTT will have to face a double threat: on one side VP Vestager will continue to exercise her ex post competition powers, on the other Commissioner Goulard may apply ex ante regulation. A scary scenario for US OTT, which may feel to be caught between two fires. 

One should consider whether this is a bad news just for dominant OTT, or for the Internet in general. Fact is, a French commissioner may be induced to propose restrictive rules for the internet, mirroring similar recent initiatives by the French government in the area of copyright, platform responsibility ecc . However, it is too early to foresee it, since commissioners are in principle independent and are normally expected to skip the desiderata of their government.

In addition  the supervising role of Margaret Vestager seems to be reassuring. The Danish politician has been as hard vis-à-vis dominant OTT as protective vis-à-vis small companies and individual rights. She will surely oppose regulations that, instead of targeting dominant operators, may affect the Internet in its whole. Her mission letter confirms that she will have to take care of  the digital eco-system in its entirety, in consideration also of SMEs.


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