DSA, DMA and ‘Access to…’

Laura Frederika Lalíková

This blogpost is part of a series of short commentaries on the European Commission’s proposals for a Digital Markets Act and a Digital Services Act, released on 15 December 2020. Stay tuned for more.

Being a fan of British comedy, I’d like to quote James Veitch (who is best known for his witty interactions with the authors of scam emails): “The Internet gave us access to everything; but it also gave everything access to us.” This struck a chord with me, as I realized that the question of access has left the tables of social sciences and legal scholars and entered the likes of comedy clubs, signifying the importance of the currency of the topic of access in digital space. People understand access. They might not understand the intricacies of it, but they understand it on a fundamental level  – the value of access and the benefits which derive from it. And we should strive to protect it.

Indeed, the rise of platformisation had the effect of restructuring traditional models of competitive markets, and social interactions. For market participants, platforms are enablers of entrepreneurial opportunities via access to data, technology, and consumers. For citizens, platforms represent a new day forum for the exchange of ideas, opinions, and most importantly access to information and social relations. Our markets and society depend on networked technologies and digital structures which facilitate, enhance, and scale nearly all modern endeavours. Since platforms are private structures, access to them is provided at the discretion of the platform owner. This is a cause for concern.

Our ability to derive benefits from platforms as business-users or as end-users depends on the benevolence of private companies. They can deplatformise or demonetize users with a click of a button, denying them access to reap the benefits of participating in digital markets and digital societies. A user can be blocked in an instant, ripping him/her away from their digital social circles or their e-commerce presence. However, since these platforms are today’s virtual bridges between users and social or economic activity, users have no choice but to give in to the power imposed on them. A clear imbalance exists between those who control the terms and administration of access to the platforms and those who depend on it. The question then arises, how does the DSA and the DMA protect access to mitigate this imbalance?

DSA/DMA and Access

Generally, the twin proposals attempt to address the critical issues relating to public oversight and transparency in regards to targeted ads, accountability over systemic risks, more remedies, more rights to access data, and lack of pluralism with regards to some core online services. 

The provisions touch upon the following access-points that mitigate the power imbalance: Under the DSA, the users will have access to an effective internal complaint-handling system, end-users of very large online platforms (VLOP) will have access to more information on why certain recommendations are displayed to them (think of Google ads),  VLOP end-users will have access to modifying the relative order of information presented to them. Under the DMA, the business-users will have access to conclude contracts with end-users outside the gatekeeper’s core platform services (think of sellers on Amazon), users will have access to services that contest core platform services (think of alternative app stores), users will have access to their data and the ability to take it elsewhere (think of taking your “follows” and “likes” elsewhere), business-users of ancillary services will have access to operating systems, hardware or software features that are available to the gatekeeper of an ancillary service & data collected about them by gatekeepers, advertisers will have access to their data and check whether the data are correct, gatekeepers of online search engines will have to give access to ‘search’ data to other engines (think of Google sharing “click and view” data with third parties).

The proposals do well in addressing the most urgent issues of the digital sector and mitigate the power balance by some degree. They bear in mind the interests of business-users and user-consumers. And they give a nod to the interests of user-citizens by virtue of other provisions such as risk assessment of systemic risks brought about by their services, or by providing access to data to vetted researchers. But, is this enough?  

Missing The Bigger Picture

The proposals in my opinion do not sufficiently address the troubling concentrations of power associated with the control over platform infrastructures. Instead, they are simply outsourcing the solutions. They are asking private platforms to perform public duties, while not acknowledging platforms’ clear public (utility) potential and more bravely treating them as such. Conceptualising these platforms more as services of public value would clarify the nature of the current legal, political debates, (and comedy club) debates.

Although the proposals attempt to mitigate the fact that my ability to access certain digital services is contingent on the obligation to give away access to my privacy, or the fact that business-users depend on platforms to reach their final consumer – it does not sufficiently address the elephant in the room. My access is still controlled, but thanks to the proposals, I can now see how. Ignorance is bliss? Most certainly not. The proposals are a step in the right direction, but the issue of power imbalance and gatekeeping still remains. The platforms still remain in control of access to the infrastructures of digital societies, they still organise my social interactions, my preferences, and opting out still means giving up on a great deal of my social identity or, for business-users, a great deal of their e-commerce identity.

Despite the DMA stating that “significant dependencies of many business-users on these gatekeepers” exist; and despite the DSA going as far as stating that “The coronavirus crisis has shown the importance of digital technologies in all aspects of modern life. It has clearly shown the dependency of our economy and society on digital services” – the proposals do not take the opportunity to treat certain digital services for what they are. Services of great public value, which ought to be under public control.

This post also features on the blog of the Utrecht University focus area Governing the Digital Society