EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
REFERENCE DOCUMENT
EUROPEAN MEDIA ENCOURAGES SWIFT ADOPTION OF DIGITAL MARKETS ACT WITH TARGETED
IMPROVEMENTS & A CLEAR FOCUS ON GATEKEEPERS, 25 May 2021.
30 June 2021, Brussels
ON SCOPE & DEFINITIONS
Digital Voice Assistants are becoming access points to
services. However, there is a difference between, on the
one hand, voice assistant technology providing an
alternative interface for certain other services (e.g., a
search engine which allows users to carry out voice
searches instead of typing a search term, or remote
controls that allow to be used by voice control rather than
using the buttons), and on the other hand, Digital Voice
Assistants, which provide software that is not directly
connected to / ancillary to another service and which
allows conversational interactions between users and a
Recital 13 a (new)
variety of services and products. Such voice assistants
have a more independent role, allowing users to use them
for a whole range of tasks and being able to have an
influence on how products and services are provided or
presented to users, intermediating between them and
(voice-enabled) app developers. Therefore, there is a
difference between voice control / voice commands in the
context of a specific product or service (i.e., voice control
as an interface), and a Digital Voice Assistant acting as an
intermediary between end users and business users as
part of the wider core services of gatekeepers.
Proposed Regulation, suggested deletion (strike through)
Article 2 Definitions
and
new insertions For the purpose of this Regulation, the following definitions
For the purposes of this Regulation, the apply:
following definitions apply:
(1)…
(1)…..
(2) ‘Core platform service’ means any of the following:
(2) ‘Core platform service’ means any of the
(a) online intermediation services;
following:
(h) web browsers;
(10) ‘Operating system’ means a system
(x) digital voice assistants;
software which controls the basic functions of (10) ‘Operating system’ means a system software which
the hardware or software and enables
controls the basic functions of
any the hardware
that is
software applications to run on it;
capable of being connected to the Internet or software
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
that enables software applications to run on it
,
including for static and mobile devices, televisions or
wearables.
(18xnew) ‘Search result’ means any information presented
in any format, including texts, graphics, videos, voice
or other output, returned in response and related to
any written, oral or equivalent search query,
irrespective of whether the information constitutes an
organic result, a paid result, a direct answer or any
product, service or information offered in connection
with, or displayed along with, or partly or entirely
embedded in the results interface.
(x) ‘web browser’ means a software used by users of
client PCs, smart mobile devices or other connected
devices to access and interact with web content hosted on
servers that are connected to networks such as the
Internet, including standalone web browsers as well as
web browsers integrated or embedded in other services
(xx) “Digital voice assistant means a software application
that provides capabilities for oral dialogue – beyond
simple voice control – with a user in natural language and
which intermediates between end users and business
users offering voice-based apps.”
Justification
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 digital
voice assistants, as their role and importance will increase even more in the future. It should also be
clarified that the term “operating system” includes operating systems for any “smart” (internet connected)
TVs and other connected devices. This will ensure that rules in Articles 5 and 6 apply to all activities where
gatekeepers control access to online audiences - including content intermediation.
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
ON TIMING & DESIGNATION
Article 3 Designation of gatekeepers
Proposed Regulation, suggested deletion (strike
through) and
new insertions
2. A provider of core platform services shall be
2. A provider of core platform services shall be
presumed to satisfy:
presumed to satisfy:
(a)[..];
(a) [..]
(b) the requirement in paragraph 1 point (b)
(b) the requirement in paragraph 1 point (b)
where it provides a core platform service that has
where it provides a core platform service that
more than 45 million monthly active end users
has more than 45 million monthly active end
established or located in the Union and more
users established or located in the Union and
than 10 000 yearly active business users
more than 10,000 yearly active business users
established in the Union in the last financial year;
established in the Union in the last financial year;
for the purpose of the first subparagraph,
for the purpose of the first subparagraph,
monthly active end users shall refer to the
monthly active end users shall refer to the
average number of monthly active end users
average number of monthly active end users
throughout the largest part of the last financial
throughout
at least six, not necessarily
year;
consecutive, months the largest part of the
(c)[..].
financial year;
(c) [..]
3. Where a provider of core platform services
3. Where a provider of core platform services
meets all the thresholds in paragraph 2, it shall
meets all the thresholds in paragraph 2, it shall
notify the Commission thereof within three
notify the Commission
without undue delay and
months after those thresholds are satisfied and
at the latest 30 days thereof within three
provide it with the relevant information
months after those thresholds are satisfied and
identified in paragraph 2.. That notification shall
provide it with the relevant information
include the relevant information identified in
identified in paragraph 2. That notification shall
paragraph 2 for each of the core platform
include the relevant information identified in
services of the provider that meets the
paragraph 2 for each of the core platform
thresholds in paragraph 2 point (b). The
services of the provider that meets the
notification shall be updated whenever other
thresholds in paragraph 2 point (b). The
core platform services individually meet the
notification shall be updated whenever other
thresholds in paragraph 2 point (b).
core platform services individually meet the
thresholds in paragraph 2 point (b).
A failure by a relevant provider of core platform
A failure by a relevant provider of core platform
services to notify the required information
services to notify the required information
pursuant to this paragraph shall not prevent the
pursuant to this paragraph shall not prevent the
Commission from designating these providers as
Commission from designating these providers as
gatekeepers pursuant to paragraph 4 at any time. gatekeepers pursuant to paragraph 4 at any time.
7. For each gatekeeper identified pursuant to
7. For each gatekeeper identified pursuant to
paragraph 4 or paragraph 6, the Commission shall paragraph 4 or paragraph 6, the Commission shall
identify the relevant undertaking to which it
within 3 months identify the relevant
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
belongs and list the relevant core platform
undertaking to which it belongs and list the
services that are provided within that same
relevant core platform services that are provided
undertaking and which individually serve as an
within that same undertaking and which
important gateway for business users to reach
individually serve as an important gateway for
end users as referred to in paragraph 1(b).
business users to reach end users as referred to
8. The gatekeeper shall comply with the
in paragraph 1(b).
obligations laid down in Articles 5 and 6 within six 8. The gatekeeper shall comply with the
months after a core platform service has been
obligations laid down in Articles 5 and 6
without
included in the list pursuant to paragraph 7 of
undue delay but no later than three six months
this Article.
after a core platform service has been included in
the list pursuant to paragraph 7 of this Article.
Justification
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. 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.
OPT-IN FOR PERSONAL DATA COMBINATION
Article 5 (a) – opt-in for personal data
Proposed Regulation, suggested deletion (strike
combination
through) and
new insertions
(a) refrain from combining personal data sourced (a) refrain from combining personal data
from these core platform services with personal sourced from these core platform services with
data from any other services offered by the personal data from any other services offered
gatekeeper or with personal data from third-party by the gatekeeper or with personal data from
services, and from signing in end users to other third-party services, and from signing in end
services of the gatekeeper in order to combine users to other services of the gatekeeper in
personal data, unless the end user has been order to combine personal data, unless the end
presented with the specific choice and provided user has been presented with the specific choice
consent in the sense of Regulation (EU) 2016/679. and provided consent in the sense of Regulation
;
(EU) 2016/679. ;
Justification
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
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
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.
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 BUSSINESS
USERS
Article 6 (i) – prohibition of making access to
Proposed Regulation, suggested deletion (strike
CPS conditional on use of another service
through) and
new insertions
(i) provide business users, or third parties (i) provide business users, or third parties
authorised by a business user, free of charge, with authorised by a business user, free of charge,
effective, high-quality, continuous and real-time with effective, high-quality, continuous and real-
access and use of aggregated or non-aggregated time access and use of aggregated or non-
data, that is provided for or generated in the aggregated data, that is provided for or
context of the use of the relevant core platform generated in the context of the use of the
services by those business users and the end users relevant core platform services by those business
engaging with the products or services provided users and the end users engaging with the
by those business users; for personal data, provide products or services provided by those business
access and use only where directly connected with users; for personal data, provide access and use
the use effectuated by the end user in respect of only
where directly connected with the use
the products or services offered by the relevant effectuated by the end user in respect of the
business user through the relevant core platform products or services offered by the relevant
service, and when the end user opts in to such business user through the relevant core platform
sharing with a consent in the sense of the services
, and wherein the end user opts in to
Regulation (EU) 2016/679;
;
such sharing with a consent
provided to the
gatekeeper or directly to the business user as
prescribed in Article 11 (2) or where the business
user may rely on Article 6(1)c or Article 6(1)e in
the sense of the Regulation (EU) 2016/679
Article 11(2)
2. Where consent for collecting and processing of 2. Where consent for collecting
, or processing
or
personal data is required to ensure compliance
sharing of personal data is required to ensure
with this Regulation, a gatekeeper shall take the compliance with this Regulation, a Gatekeeper
necessary steps to either enable business users to shall take the necessary steps to either enable
directly obtain the required consent to their business users to directly obtain the required
processing, where required under Regulation (EU) consent to their processing
and retrieval, where
2016/679 and Directive 2002/58/EC, or to comply required under Regulation (EU) 2016/679 and
with Union data protection and privacy rules and Directive 2002/58/EC, or,
if such consent is not
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
principles in other ways including by providing
obtained, to comply with Union data protection
business users with duly anonymised data where and privacy rules and principles in other ways
appropriate.
including by providing business users with duly
anonymised data
where appropriate.
In case consent is directly expressed by the end-
user at the level of the services offered by the
business user through the relevant core platform
service, it shall prevail over any consent provided
at the gatekeeper level.
Article 11(2)(a)
The gatekeeper shall not make the obtaining of The gatekeeper shall not make the obtaining of
this consent by the business user more
this consent by the business user more
burdensome than for its own services.
burdensome than for its own services.
In
particular, the obtaining of this consent should be
as user-friendly as possible and under the same
conditions, such as the duration and renewal of
consent, as those applied to the consent provided
by the end user to the gatekeeper for the use of
such data for its own services. Neither shall the
gatekeeper make it less burdensome or create
more barriers to obtain any such consent) for the
business user than for its own services. Where an
end user has not granted or has withdrawn
consent for the collection and processing of
personal data required to ensure compliance
with this Regulation, a gatekeeper may not itself
process such data for any other purpose than the
provision of the core platform service for which
the data was provided by the end user.
Justification
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.
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
AUDIENCE MEASUREMENT
Article 6 (g) – transparency in advertising
Proposed Regulation, suggested deletion (strike
intermediation (performance)
through) and
new insertions
(g) provide advertisers and publishers, upon their g) provide advertisers and publishers, upon their
request and free of charge, with access to the request and free of charge access to the
performance measuring tools of the gatekeeper performance measuring tools of the Gatekeeper
and the information necessary for advertisers and and
via a suitable interface high-quality,
publishers to carry out their own independent
continuous and real-time access and use of all the
verification of the ad inventory;
information and data necessary for advertisers,
publishers,
mandated independent third parties,
to
effectively carry out their own independent
measurement of the performance of their
services and the intermediation services provided
by the Gatekeeper, including the verification of
the provision of the relevant advertising services,
the ad inventory
and the attribution.
Justification
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 PRACTICES
Article 5 (f) – prohibition of making access to
Proposed Regulation, suggested deletion (strike
CPS conditional on use of another service
through) and
new insertions
(f) refrain from requiring business users or end (f) refrain from requiring from business users or
users to subscribe to or register with any other end users to subscribe to
, or register
or use any
core platform services identified pursuant to other
[digital] service core platform services
Article 3 or which meets the thresholds in Article identified pursuant to Article 3 or which meets
3(2)(b) as a condition to access, sign up or register the thresholds in Article 3(2)(b
) as a condition to
to any of their core platform services identified access, sign up, or register to,
use any of their
pursuant to that Article;
core platform services identified pursuant to
that Article
3 or meeting the thresholds of Article 3
(2) (b) or as a condition for obtaining a better
price for the use of such core platform services
or any product or services offered through such
core platform.
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
Article 5 (x) new
refrain from making the indexing, ranking or
display of a business user in a core platform
service dependent on this business user’s
subscription to, registration to or use of any core
platform service identified pursuant to Article 3
or meeting the thresholds in Article 3 (2) (b)
New Article 5(fa):
A platform must refrain from requiring the
acceptance of supplementary conditions or
services that, by their nature or according to
commercial usage, have no connection with and
are not necessary for the provision of the
platform or services to its business users.
Justification
The proposed DMA prohibits 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 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 AND THIRD PARTY FAVORITISM
Article 6 (d) – Article 6 (1) (d) - prohibition of self- Proposed Regulation, suggested deletion (strike
favouring in ranking
through) and
new insertions
refrain from treating more favourably in ranking refrain from
embedding or treating more
services and products offered by the gatekeeper favourably in
crawling, indexing, ranking
and
itself or by any third party belonging to the same
settings as well as in access to and conditions for
undertaking compared to similar services or
the use of services, functionalities or technical
products of third party and apply fair and non-
interfaces services and products offered by the
discriminatory conditions to such ranking;
gatekeeper itself or by any third party,
with which
it has entered into an agreement, belonging to
the same undertaking compared to similar
services or products of
third part
yies and apply
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
fair,
reasonable
and
non-discriminatory
conditions to such
crawling, indexing, ranking
and
settings
Article 2(18)
‘Ranking’ means the relative prominence given to
goods or services
offered through online
intermediation services, or online social
networking services, or the relevance given to
search results by online search engines, as
presented, organised or communicated by the
providers of
online intermediation services or of
online social networking services or by providers
of online search engines core platform services,
respectively, whatever the technological means
used for such presentation, organisation or
communication.
.
Justification
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 CONDITIONS OF ACCESS
Article 6 (1) (k)
(k) apply fair and non-discriminatory general (k) apply fair
, reasonable and non-discriminatory
conditions of access for business users to its general conditions of access,
treatment and use
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
software application store designated pursuant to for business users to its
core platform service Article 3 of this Regulation.
software application store
designated pursuant
to Article 3 of this Regulation.
6 (1) (ka)
refrain from applying unfair and discriminatory
conditions to the business users of its core
platform service, including its digital voice
assistant. Such unfair and discriminatory
conditions may include, but are not limited to,
mandating the use of its own ad tech solutions,
inserting sponsorship or advertising around
third-party content provided through its core
platform service without the express consent of
the provider of such consent;
Recital 57
In particular gatekeepers which provide access to
(57) In particular gatekeepers which provide
software application stores serve as an important access to software application stores
core
gateway for business users that seek to reach end
platforms services which serve as an important
users. In view of the imbalance in bargaining gateway for business users that seek to reach end
power between those gatekeepers and business users. In view of the imbalance in bargaining
users of their software application stores, those power between those gatekeepers and business
gatekeepers should not be allowed to impose users of their software application stores, those
general conditions, including pricing conditions, gatekeepers should not be allowed to impose
that would be unfair or lead to unjustified general conditions, including pricing conditions,
differentiation. Pricing or other general access
data usage conditions or conditions related to
conditions should be considered unfair if they lead
the licensing of rights held by the business user,
to an imbalance of rights and obligations imposed that would be unfair or lead to unjustified
on business users or confer an advantage on the differentiation
. Imposing conditions
gatekeeper which is disproportionate to the
encompasses both explicit and implicit demands,
service provided by the gatekeeper to business
by means of contract or fact, including, for
users or lead to a disadvantage for business users
example, an online search engine making the
in providing the same or similar services as the
raking results dependent on the transfer of
gatekeeper. The following benchmarks can serve
certain rights or data. Pricing or other general
as a yardstick to determine the fairness of general access conditions should be considered unfair if
access conditions: prices charged or conditions they lead to an imbalance of rights and
imposed for the same or similar services by other obligations imposed on business users or confer
providers of software application stores; prices an advantage on the gatekeeper which is
charged or conditions imposed by the provider of disproportionate to the service provided by the
the software application store for different related gatekeeper to business users or lead to a
or similar services or to different types of end disadvantage for business users in providing the
users; prices charged or conditions imposed by the same or similar services as the gatekeeper
. The
provider of the software application store for the following benchmarks can serve as a yardstick to
same service in different geographic regions; determine the fairness of general access
prices charged or conditions imposed by the conditions: prices charged or conditions imposed
provider of the software application store for the for the same or similar services by other
EUROPEAN MEDIA SUGGESTED AMENDMENTS ON THE DMA PROPOSAL
same service the gatekeeper offers to itself. This providers of software application stores; prices
obligation should not establish an access right and charged or conditions imposed by the provider of
it should be without prejudice to the ability of the software application store for different
providers of software application stores to take related or similar services or to different types of
the required responsibility in the fight against end users; prices charged or conditions imposed
illegal and unwanted content as set out in by the provider of the software application store
Regulation [Digital Services Act].
for the same service in different geographic
regions; prices charged or conditions imposed by
the provider of the software application store for
the same service the gatekeeper offers to itself.
It
should also be considered unfair if access to the
service or the quality and other conditions of the
service are made dependent on the transfer of
data or the granting of rights by the business
user which are unrelated to or not necessary for
providing the core platform service. This
obligation should not establish an access right
and it should be without prejudice to the ability
of providers of software application stores to
take the required responsibility in the fight
against illegal and unwanted content as set out in
Regulation [Digital Services Act].
Justification
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 license 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.
Signatories:
