The European Commission is about to start a new legislative debate regarding Internet hosting providers – services that are hosting and make information available online. These providers have been protected since 2000 by the E-Commerce Directive, when the Internet was maybe a less complex thing to address through legislation. The rules were simple: hosting services are not liable for information they store if they stay “passive” – if they do nothing more than storing information provided by their users.
Since 2000, new actors like Facebook and Google have appeared and raised new issues, both legal and political. Are these new platforms really “passive”? Have they became too big? Should they be fixed, destroyed, left? The Commission is willing to gather opinions from as many actors as possible. It is quite hard to guess what will arise from that. But the issues at stake are so complex and affect so many things that it may lead to one of the most impactful piece of European legislation. Our answer to the Commission’s consultation is short and simple.
Response to the public consultation on the Digital Services Act
Reviewing the E-Commerce Directive will require to address a central, difficult issue: giants platforms such as Facebook, Youtube and Twitter are playing a more and more active role by organising and promoting information they store. Their business model, rooted in attention economy, seems to foster resentment and distrust rather than kindness and solidarity.
If the E-Commerce Directive was to be strictly applied, such active platforms might be held responsible for almost all information they store. Under such circumstances, these companies may not be able to pursue their business in Europe. In the long run, this would be a good thing, but it should not happen too fast; otherwise, millions of users would be abruptly deprived of their main means of communication.
Our priority must be to give users the best and easiest tools to leave giant platforms. These platforms, while keeping their users captive, are based on breaching European rights and values regarding both personal data and free speech.
Hosting services, as defined in Article 14 of Directive 2000/31, which are provided for profit-making purposes and to a singularly large number of users, shall be interoperable.
Hosting services are interoperable if, through the implementation of appropriate technical standards, they enable their users to exchange information with the users of third-party services implementing the same technical standards.
Technical standards are appropriate if the are publicly documented, are in line with current best practices, are stable and cannot be changed unilaterally.
Users of interoperable services should be able to exchange information in the same manner and with the same ease with users of the same service and users of third-party services implementing the same technical standards.
Authorities referred to in Article 5 of the European Electronic Communications Code shall monitor and enforce the application of this obligation and shall have the power to impose administrative fines and obligations for that matter.
Interoperability obligation will enable users to leave giant platforms without needing to pay the often unbearable social cost that comes with loosing contact with their family, friends, co-workers or solidarity network. Users could join other similar services, while still being able to communicate with their contacts that stayed behind.
Once they left, users would be released from any contractual relationship with the giant platform: their personal data may no longer be processed based on their forced consent and their speech may no longer be suppressed based on defective rules imposed by hegemonic companies.
This new freedom would make it possible for users to choose other hosting services with moderation rules that fit way better their needs. On the contrary, the moderation systems of the biggest platforms seems unable to protect their users, in part because of their overwhelming size.
Giant platforms would not need to be interoperable with any and all other services, but only with those that use the same technical standard as they do.
These standards should not be modified too often and one platform should not be able to modify them alone – otherwise, such a platform would be in position to make the standards unusable in practice. Standards must comply with what the regulatory authority deems to be the state of the art.
Currently, the ActivityPub standard appears to be the simplest and most obvious starting point. However, in theory, nothing prevents giant platforms from proposing their own standards to the regularity authorities.
The interconnection between an interoperable platform and third-party services would not be automatic, but at the demand of each user, who will choose which other users and services to communicate with and in what manner.
In this way, no user would be troubled by interoperability: all user will keep control on whom they communicate with – any user may decide to not make use of the possibilities offered by interoperability and this will be without consequences for him/her.
In the same way, interoperability will not imply added obligation regarding moderation for giant platforms, as they could not be held responsible for information shared by third parties whom they have absolutely no contractual relation with. But if they really want to do so, giant platforms may still moderate messages and information coming from third parties.
Internet’s core principle
The interoperability principle is nothing new, it is in fact the basis of the Internet, which was created as a decentralized network, before the increasing pressure for centralization came from massive services and providers, making it in the same time so difficult to handle.
The example of email is one of the oldest and best example of interoperability; it would be difficult to imagine being unable to send an email to someone just because they use a different email provider.
Therefore, imposing interoperability to giant hosting providers would be a natural addition to Article 61, (2), (c), of the European Electronic Communications Code, that already imposes interoperability regarding interpersonal communications.
In France, our project is supported by a wide range of political actors. The French government supports it, as the Secretary of State for Digital Affairs, Cédric O, stated during an hearing at the Assemblée Nationale regarding moderation rules on big platforms: “interoperability is one of the solutions (…) It is up to Europe to impose rules on interoperability, as it has been done on data protection”. In the same debate, more than 60 members of the Assemblée Nationale, from both left and right wing parties, have tabled 7 amendments aimed at promoting and imposing interoperability to giant platforms. Meanwhile, the Sénat has adopted a bill « aimed at guaranteeing the free choice of consumer in cyberspace » which includes interoperability obligations.
These legislative initiatives are the result of different positions taken by French administrations, like the ARCEP (the French agency in charge of regulating telecommunications in France) or the French Treasury which has proposed “obligations to develop technical standards to promote interoperability of services and the migration possibilities of users […] when competitive issues associated to a platform appear to be structural and lasting therefore require ongoing intervention to be resolved”. These initiatives have followed an open letter from May 2019 signed by 75 French organisations to impose interoperability to Web giants.