Europe’s media sector, represented by the undersigned organisations, welcomes the Commission’s proposal
on the Digital Markets Act (DMA) as a much needed and urgent step towards establishing a fair, balanced and
contestable digital market.
A combination of lax regulation, harmful and unfair practices by Gatekeepers, and ineffective European
competition remedies, means that a handful of global players have used their monopoly positions to become
the Gatekeepers to the digital economy. Gatekeepers drive the vertical integration within the wider media
ecosystem, using platform policies to squeeze independent media businesses and locking out new entrants,
extracting revenues from the creative ecosystem through monopoly rents, that would otherwise be reinvested
in production and media plurality.
We therefore welcome the European Commission’s proposal to adopt an internal market instrument, with
its much-needed ex-ante regulatory approach. This is vital to address the harmful practices of gatekeepers
through the imposition of mandatory obligations and prohibitions. This Proposal is a clearly targeted and sound
document which acknowledges the need to control the conduct of digital gatekeepers in order for digital
markets to remain fair and contestable. This is why the media sector strongly believes that it is imperative
that the Proposal is not watered down as it goes through the European Parliament and the Council. However,
we consider that certain amendments can be made to the Proposal in order to ensure that the DMA will be a
comprehensive instrument that captures and effectively addresses harmful – existing and potential future –
conducts of gatekeepers.
Scope
It is essential that the scope remains tightly focused, as proposed by the European Commission, to the
gatekeeper platforms whose size, reach and exercise of monopoly power justify the prohibitions and
obligations enshrined in the DMA proposal. In our view, the Commission’s proposal strikes the right balance in
restricting the scope to the entities it seeks to capture. We are concerned that, if the DMA targets a group of
platform services that is too broad - or that could be quickly broadened over time - the material obligations
may be diluted and the enforcement may be slowed down, without additional benefits. There is an important
correlation between the threshold for regulating a service and the intensity of such regulation. An effective
control of the immense powers of genuine Gatekeepers to structure today’s digital economy requires intensive
oversight, as such we would suggest that the co-legislators abstain from attempts to widen the scope of
the proposal. However, we believe that the list of core platforms services should include web browsers, as
defined by the European Commission in its Android decision1, and clarify that the term “operating system”,
as defined in Article 2(10), includes operating systems for any “smart” (internet connected) TVs, speakers and
voice assistants. This will ensure that rules in Articles 5 and 6 apply to all activities where gatekeepers control
access to online audiences - including content intermediation.
Timing
Recent profit announcements by the biggest gatekeeper platforms demonstrate how rapidly they are using
their monopoly positions to extract revenues from markets in which they operate 2. The scale of these profits
is abnormal, prompting an urgent need for the harmful market practices identified to be banned before any
remaining competition to these platforms is eliminated. It is crucial that the obligations foreseen in Articles
5 and 6 apply as soon as possible after adoption of the Regulation. We caution against any attempt by
gatekeepers or other entities, to delay the application of the obligations. As such, we call for the obligations
to be directly applicable to Gatekeepers after designation and to ensure that the regulatory dialogue does
not have a suspensive effect on the obligations foreseen in Articles 5 and 6. In addition, we recommend
that interested stakeholders, including consumer organisations, should have the right to participate in the
regulatory dialogue, as they often are victims of the practices that the DMA seeks to address.
Opt-in for personal data combination
The DMA should include a prohibition on Gatekeepers from combining and using data for their own purposes.
Currently Article 5(a) prohibits the bundling of data from various sources only if the user does not consent to
such combination in the sense of an opt-in. When dealing with Gatekeepers, such a solution could instead
render the provision empty of any substance. By nature, the gatekeepers’ position gives them critical leverage
to offer incentives or force users into consenting to certain data processing operations 3. Therefore, the ban
on combining personal data sourced from a gatekeeper’s core service with personal data from other services
should be strengthened and apply irrespective of the end user’s consent to effectively address gatekeeper’s
data power.
Access to data generated by intermediating between end users and business users
Article 6(1)i has the potential to resolve many competitive issues that currently exist in the digital market.
Access to data generated by media content is an essential requirement for all industries which have a digital
presence. However, currently, the obligation to share personal data is connected to the gatekeeper’s capacity
to obtain consent for data sharing. Given the experiences that our industries have with consent management,
relying on the gatekeepers to manage consent would empty the obligation of any meaning. Gatekeepers
should be incentivized to facilitate the obtention of end-users’ consent for sharing data with business users,
for instance by limiting Gatekeepers’ capacity to re-use the data collected if business users cannot equally
access it.
Audience measurement
We welcome the provision on audience measurement in Article 6(1)g, however, in order for it to ensure
meaningful access to information for the media sector we would insist on the need for granular, reliable and
transparent information; independently verified by trusted, approved and neutral third parties.
Unfair bundling and tying of services
The proposed DMA prohibit bundling practices that require a user to subscribe to or register with one service
in order to use another service (Article 5(f)). Such approach falls short of addressing equally unfair bundling
practices which do not focus on subscription/registration such as: i) forcing business users to offer content
on a subscription-based core platform service as a condition to make that content equally available on the
free version of that core service, or ii) proposing aggressive multi-product rebates (or mixed bundling 4) which
hamper competition even from the most efficient companies in their field. To effectively address leveraging
before markets have ‘tipped’, this provision should cover the tying of one gatekeeper service with another core
service for which the undertaking does not yet enjoy a gatekeeper position.
Self-preferencing & third-party favouritism
A ban on self-preferencing in ranking as foreseen in Article 6.1.d is a necessary precondition for the well-
functioning of the digital single market. The DMA proposal however only prohibits giving preferential treatment
to own services in ranking but does not prohibit giving preferential treatment to selected third parties. We
indeed believe that gatekeeper platforms are able to circumvent the prohibition of self-preferencing by
favouring selected services and partners, thus creating the same anticompetitive effects for competitors
and undermining the free choice of the user. We therefore recommend that the ban on self-preferencing
is extended to selected third parties. Additionally, this provision must apply beyond search engines to all
core platform services operated by designated gatekeepers; it should also be extended to cover other
self-preferencing practices that go beyond ranking. This includes ensuring that users are accurately and
impartially directed to the content they have requested via the gatekeeper platform’s electronic programme
guide or voice activated ranking services, instead of being directed to the platforms’ own competing services.
Moreover, the algorithms which underpin the discoverability of content must be transparent.
Fair and non-discriminatory general conditions of access
The principle foreseen in Article 6(1)k is limited to App stores. We recommend that in order to ensure the
effectiveness of the DMA, the obligation must be applied beyond App stores to all core platform services, in
particular to search engines and social networks.
The DMA therefore must prohibit gatekeepers from imposing unfair conditions, such as the granting of a
royalty-free license, demanding data that is not necessary to provide the intermediation service, or tying
the ability of users to exercise statutory remuneration rights to their participation in platform services. The
accompanying Recital 57 which already provides – although only for App Stores - that pricing or other
general access conditions are unfair, in particular if they provide an advantage for the gatekeeper that is
disproportionate to the intermediary service, must also cover the scenario whereby a Gatekeeper would
make the access to the gatekeeper platform dependent on a free licence for rights or for the transfer of
data. This is vital to ensure Europe can maintain its core objectives of cultural diversity, media pluralism and
competitiveness which benefits European citizens. Therefore, article 6.1k should be expanded to include
an obligation refraining Gatekeepers from inserting sponsorship and advertising around third party content,
without the express consent of the content provider.
Gatekeepers should be obliged to negotiate on fair and non-discriminatory terms, for the use of content on
their core platform services. In the event of a dispute about the conditions of access for business users to
core platform services pursuant to Article 3(7), the Commission should have the option to impose specific
procedures, including through binding codes of conduct to govern aspects of the gatekeepers’ relationship
with business users, for instance through arbitration to contribute to the proper application of the Regulation.
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