Europe’s Tech Laws Should Be a Matter of Principle

(Bloomberg Opinion) -- The stereotypical view that the European Union is far from the minds of most Europeans is challenged whenever a technology-related topic is on the agenda of the European Parliament. Over the 10 years that I served there, few battles for legislative outcomes were more fiercely contested.

But the attendant controversies often lead to protracted processes, ambiguous laws and ineffective regulation. Consider the lobbying war that broke out last year, when a new copyright law was set to push tech platforms to filter content posted by users. The platforms spent huge sums in an effort to convince lawmakers that the new rules would threaten the open internet. Across the trenches was the lobbying campaign by movie, music and publishing houses, complete with free concerts by famous artists and promises of saving journalism—and democracy.

In the end, a new European Copyright Directive was adopted with a narrow majority. Whether any side ‘won’ the battle is unclear. The directive must now be implemented in all EU member states, and it will take a couple of years before we know how they interpret the law, and what legal uncertainties will be challenged before courts.

I believe the rule of law loses when political processes around a single piece of legislation are needlessly dragged out. Worse, where citizens and companies desperately want to know how rights apply online, the laws do not always offer certainty.

Now, a new set of European parliamentarians has an opportunity to take a more effective approach to ensure that the online sphere is properly governed by the rule of law. As technologies develop ever faster, democratic rule-making needs to get more agile. The way to do this is to anchor laws on agreed principles, rather than take a piecemeal approach to specific technologies.

For instance, if we agree that competition should be fair, then competition regulators should be able to enforce this principle, no matter the industry. Since the principle of non-discrimination is not broadly contested, discrimination on the basis of age, gender or religion are against the law, and violators should be punished.

To ensure principles are enforced, what we need are not new laws as much as new ways to enforce existing laws in the online sphere.

Another hotly contested piece of legislation illustrates why. In 2012, after telecoms operators were found out to have crippled access to digital competitors’ phone calls and text messages, the Dutch parliament, and later the entire EU, enshrined net neutrality in law.

The principle of net neutrality, which forbids anti-competitive discrimination in the transfer of data packages, has many elements in common with general antitrust and competition law. A gatekeeper cannot use that position to disadvantage competitors, for example. But the fact that net neutrality legislation was baked into a telecoms package meant it did not clarify other aspects of competition in the digital economy. By reducing the rules of the road to telecoms companies, instead of applying them broadly to all companies, an opportunity was missed.

Too many proposals to regulate the digital world are built on sectoral regulations. This makes for more narrowly defined laws, instead of broadly applicable principles. The question is whether competition law itself could not have dealt with the anti-competitive behavior of the telecoms operators, as it does in other sectors. The challenge is to ensure enough capacity on the part of anti-trust and other regulators.

Putting principles first would make laws technology-neutral and thus more broadly relevant. We should empower civil-liberties regulators to assess whether a service or organization has denied services or equal treatment to minorities. We should let a privacy watchdog assesses whether the right to privacy is upheld. Antitrust regulators should determine whether antitrust and competition principles are respected. Challenges to free speech should be anchored in speech laws, not left to businesses to decide.  

As the rules for the digital economy are rewritten, the new batch of European lawmakers will have an opportunity to make them as future proof as possible. One early challenge will drafting a new e-commerce directive, with rules for digital services as well as consumer rights online. The intermediary liability exemption, which shields platform companies from responsibility for content exchanged over them, will most likely change. Expect the lobbying efforts around this to dwarf those over the copyright directive.

To drown out the noise and produce efficient legislation, the lawmakers should focus on protecting fundamental principles, and give regulators the space to assess whether those principles are upheld in practice.

To contact the editor responsible for this story: Bobby Ghosh at aghosh73@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Marietje Schaake is a member of the European Parliament from the Netherlands.

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