FEDMA welcomes Member States’ agreement on the DSA, but areas of improvement remain over the DMA

On November 25^th, the Council of the European Union agreed on its negotiating mandate on the proposals for a Digital Services Act (DSA) and Digital Markets Act (DMA).  Published less than a year ago by the European Commission, the two proposals represent a crucial opportunity for the EU to set a harmonized set of rules for a solid, contestable and fair Digital Single Market. The swift adoption of a general approach on both legislative initiatives is a positive signal, pointing out a strong shared political will among the EU Member States to catch up with the pace of technological changes and market imbalances in the digital ecosystem.

Regarding the Council’s agreement on the proposed Digital Services Act, FEDMA welcomes the Council’s approach on online advertising which recognizes transparency as a key component in building trust in the advertising industry, and in the data economy in general. We also support the explicit inclusion of search engines in the list of intermediary services, and the recognition of industry best practices and self-regulatory measures as tools for effective mitigating measures.

As for the general approach on the proposed Digital Markets Act, FEDMA welcomes the introduction of a definition of “active end-users/business-users” and the possibility for third parties authorized by advertisers to have access to the performance measuring tools of the gatekeepers related to its advertising services. However, we believe that there remain areas of improvements in some of the articles of the Digital Markets Act which would strengthen its potential to address the asymmetric bargaining and market power of gatekeeper platforms vis-à-vis business users.

• Article 2(2): including web browsers in the list of core platforms services, thus recognizing their increasing gateway role in shaping the users’ experience in the digital landscape, including how they interact with business users.
• Article 5(1)a: Strengthening gatekeepers’ restrictions for the combination of personal data across their services and from third parties.
• Article 5(1)g: Strengthening pricing transparency obligations to include information on pricing conditions concerning the bids placed by advertisers and advertising intermediaries.
• Article 6(1)g: Strengthening access to performance and measurement data for advertisers, including access to granular, user-level and high-quality information allowing advertisers to carry out their own independent verification of the ad inventory.
• Article 6(1)i: Enabling business users to rely on GDPR legitimate interest as to prevent gatekeepers from benefitting from any data advantage stemming from the collection of personal data generated by the end-users interacting with business users.
• Article 6(1)k: Ensuring fair and non-discriminatory general conditions of access across all core platform services.
• Article 30: Introducing reporting mechanisms for competitors, business users, and end users to lodge complaints in case of infringements of the gatekeepers’ obligations.

We therefore hope that the upcoming trilogue negotiations will preserve the Council’s transparency-driven approach on online advertising in the DSA while addressing the points mentioned above in the DMA. We also strongly believe that the measures put forward in the two proposals should not only go hand in hand with each other, but also with existing legislation on data protection, consumer protection, and platform-to-business relations.

With this in mind, FEDMA is looking forward to continuing to contribute to the discussion with both the European Parliament and the Council of the EU.

For more information, find here FEDMA’s position paper on the DSA and DMA.