What can a media privilege look like? Unpacking three versions in the EMFA

Journal of Media Law, 2024

Abstract

The media privilege has been one of the most controversial aspects of the proposed European Media Freedom Act (EMFA). However, it is important not to assess the drawbacks of the media privilege in isolation, but in relation to the other available alternatives. In this comment, we lay out and critique how the European Parliament and Council build on the Commission’s proposal for a media privilege in the EMFA. We focus on three key questions: how is media content treated differently, who qualifies as media, and who decides who qualifies as media?

Content moderation, Media law, Platforms

Bibtex

Article{nokey, title = {What can a media privilege look like? Unpacking three versions in the EMFA}, author = {Drunen, M. van and Papaevangelou, C. and Buijs, D. and Fahy, R.}, doi = {https://doi.org/10.1080/17577632.2023.2299097}, year = {2024}, date = {2024-01-31}, journal = {Journal of Media Law}, abstract = {The media privilege has been one of the most controversial aspects of the proposed European Media Freedom Act (EMFA). However, it is important not to assess the drawbacks of the media privilege in isolation, but in relation to the other available alternatives. In this comment, we lay out and critique how the European Parliament and Council build on the Commission’s proposal for a media privilege in the EMFA. We focus on three key questions: how is media content treated differently, who qualifies as media, and who decides who qualifies as media?}, keywords = {Content moderation, Media law, Platforms}, }

How to design data access for researchers: A legal and software development perspective

Drunen, M. van & Noroozian, A.
Computer Law & Security Review, vol. 52, 2024

Abstract

Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.

data access, DSA, Platforms, Transparency

Bibtex

Article{nokey, title = {How to design data access for researchers: A legal and software development perspective}, author = {Drunen, M. van and Noroozian, A.}, doi = {https://doi.org/10.1016/j.clsr.2024.105946}, year = {2024}, date = {2024-04-01}, journal = {Computer Law & Security Review}, volume = {52}, pages = {}, abstract = {Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.}, keywords = {data access, DSA, Platforms, Transparency}, }

Copyright Content Moderation in the European Union: State of the Art, Ways Forward and Policy Recommendations external link

Quintais, J., Katzenbach, C., Schwemer, S., Dergacheva, D., Riis, T., Mezei, P., Harkai, I. & Magalhães, J.C.
IIC, 2024

Abstract

This Opinion describes and summarises the results of the interdisciplinary research carried out by the authors during the course of a three-year project on intermediaries’ practices regarding copyright content moderation. This research includes the mapping of the EU legal framework and intermediaries’ practices regarding copyright content moderation, the evaluation and measuring of the impact of moderation practices and technologies on access and diversity, and a set of policy recommendations. Our recommendations touch on the following topics: the definition of “online content-sharing service provider”; the recognition and operationalisation of user rights; the complementary nature of complaint and redress safeguards; the scope of permissible preventive filtering; the clarification of the relationship between Art. 17 of the new Copyright Directive and the Digital Services Act; monetisation and restrictive content moderation actions; recommender systems and copyright content moderation; transparency and data access for researchers; trade secret protection and transparency of content moderation systems; the relationship between the copyright acquis, the Digital Services Act and the upcoming Artificial Intelligence Act; and human competences in copyright content moderation.

Content moderation, Copyright, Digital services act, Digital Single Market, intermediaries, Platforms

Bibtex

Article{nokey, title = {Copyright Content Moderation in the European Union: State of the Art, Ways Forward and Policy Recommendations}, author = {Quintais, J. and Katzenbach, C. and Schwemer, S. and Dergacheva, D. and Riis, T. and Mezei, P. and Harkai, I. and Magalhães, J.C.}, url = {https://link.springer.com/article/10.1007/s40319-023-01409-5}, doi = {https://doi.org/10.1007/s40319-023-01409-5}, year = {2024}, date = {2024-01-01}, journal = {IIC}, abstract = {This Opinion describes and summarises the results of the interdisciplinary research carried out by the authors during the course of a three-year project on intermediaries’ practices regarding copyright content moderation. This research includes the mapping of the EU legal framework and intermediaries’ practices regarding copyright content moderation, the evaluation and measuring of the impact of moderation practices and technologies on access and diversity, and a set of policy recommendations. Our recommendations touch on the following topics: the definition of “online content-sharing service provider”; the recognition and operationalisation of user rights; the complementary nature of complaint and redress safeguards; the scope of permissible preventive filtering; the clarification of the relationship between Art. 17 of the new Copyright Directive and the Digital Services Act; monetisation and restrictive content moderation actions; recommender systems and copyright content moderation; transparency and data access for researchers; trade secret protection and transparency of content moderation systems; the relationship between the copyright acquis, the Digital Services Act and the upcoming Artificial Intelligence Act; and human competences in copyright content moderation.}, keywords = {Content moderation, Copyright, Digital services act, Digital Single Market, intermediaries, Platforms}, }

Dealing with opinion power and media concentration in the platform era external link

LSE Blog, 2023

media concentration, Media law, Platforms

Bibtex

Online publication{nokey, title = {Dealing with opinion power and media concentration in the platform era}, author = {Seipp, T.}, url = {https://blogs.lse.ac.uk/medialse/2023/05/15/dealing-with-opinion-power-and-media-concentration-in-the-platform-era/}, year = {2023}, date = {2023-05-15}, journal = {LSE Blog}, keywords = {media concentration, Media law, Platforms}, }

Dealing with Opinion Power in the Platform World: Why We Really Have to Rethink Media Concentration Law external link

Seipp, T., Helberger, N., Vreese, C.H. de & Ausloos, J.
Digital Journalism, 2023

Abstract

The platformised news environment affects audiences, challenges the news media’s role, and transforms the media ecosystem. Digital platform companies influence opinion formation and hence wield “opinion power,” a normatively and constitutionally rooted notion that captures the core of media power in democracy and substantiates why that power must be distributed. Media concentration law is the traditional tool to prevent predominant opinion power from emerging but is, in its current form, not applicable to the platform context. We demonstrate how the nature of opinion power is changing and shifting from news media to platforms and distinguish three levels of opinion power: (1) the individual citizen, (2) the institutional newsroom and (3) the media ecosystem. The reconceptualization at the three levels provides a framework to develop future (non-)regulatory responses that address (1) the shifting influence over individual news consumption and exposure, (2) the changing power dynamics within automated, datafied and platform-dependent newsrooms, and (3) the systemic power of platforms and structural dependencies in the media ecosystem. We demonstrate that as the nature of opinion power is changing, so must the tools of control.

Media law, news, Platforms

Bibtex

Article{nokey, title = {Dealing with Opinion Power in the Platform World: Why We Really Have to Rethink Media Concentration Law}, author = {Seipp, T. and Helberger, N. and Vreese, C.H. de and Ausloos, J.}, url = {https://www.tandfonline.com/doi/full/10.1080/21670811.2022.2161924}, doi = {https://doi.org/10.1080/21670811.2022.2161924}, year = {2023}, date = {2023-01-03}, journal = {Digital Journalism}, abstract = {The platformised news environment affects audiences, challenges the news media’s role, and transforms the media ecosystem. Digital platform companies influence opinion formation and hence wield “opinion power,” a normatively and constitutionally rooted notion that captures the core of media power in democracy and substantiates why that power must be distributed. Media concentration law is the traditional tool to prevent predominant opinion power from emerging but is, in its current form, not applicable to the platform context. We demonstrate how the nature of opinion power is changing and shifting from news media to platforms and distinguish three levels of opinion power: (1) the individual citizen, (2) the institutional newsroom and (3) the media ecosystem. The reconceptualization at the three levels provides a framework to develop future (non-)regulatory responses that address (1) the shifting influence over individual news consumption and exposure, (2) the changing power dynamics within automated, datafied and platform-dependent newsrooms, and (3) the systemic power of platforms and structural dependencies in the media ecosystem. We demonstrate that as the nature of opinion power is changing, so must the tools of control.}, keywords = {Media law, news, Platforms}, }

The platformisation of digital payments: The fabrication of consumer interest in the EU FinTech agenda external link

Ferrari, V.
Computer Law & Security Review, vol. 45, 2022

Abstract

This paper investigates, through a qualitative analysis of official documents, how certain imaginaries about technology filter into EU policymaking, allowing or accelerating the transformation of payment infrastructures into the platform economy. One of the ways in which socio-technical imaginaries filter into policymaking is, it turns out, by informing an image of the consumer which serves to justify measures for the realization of a desired future. In particular, the documents offer a view of the consumer as an actor that is empowered by digitisation. The thesis of this paper is that this view of the consumer is partial: the rhetoric of consumer technological empowerment outweighs and conceals much needed considerations about the vulnerability of consumers vis-a-vis data-intensive payment technologies. Ultimately, the fault lies with the future imaginaries upon which such image is grounded. The vision of the digital payment infrastructure portrayed in the documents is in fact problematic for two reasons. First, the technologies that are portraited as desirable are chosen based on industry interests and trends rather than considerations of benefits and risks that these technologies entail. Secondly, the assumption that a liberalized market will offer more and better choices is flawed, as platformisation entails risks of monopolization and abuses of market power. We suggest that policymakers in this domain should be more critical of the risks entailed by platformisation, and open their imagination to alternative technological futures.

digital platforms, frontpage, Platforms, Technologie en recht

Bibtex

Article{nokey, title = {The platformisation of digital payments: The fabrication of consumer interest in the EU FinTech agenda}, author = {Ferrari, V.}, url = {https://www.ivir.nl/computerlawsecurityreview_2022/}, doi = {https://doi.org/https://doi.org/10.1016/j.clsr.2022.105687}, year = {0519}, date = {2022-05-19}, journal = { Computer Law & Security Review}, volume = {45}, pages = {}, abstract = {This paper investigates, through a qualitative analysis of official documents, how certain imaginaries about technology filter into EU policymaking, allowing or accelerating the transformation of payment infrastructures into the platform economy. One of the ways in which socio-technical imaginaries filter into policymaking is, it turns out, by informing an image of the consumer which serves to justify measures for the realization of a desired future. In particular, the documents offer a view of the consumer as an actor that is empowered by digitisation. The thesis of this paper is that this view of the consumer is partial: the rhetoric of consumer technological empowerment outweighs and conceals much needed considerations about the vulnerability of consumers vis-a-vis data-intensive payment technologies. Ultimately, the fault lies with the future imaginaries upon which such image is grounded. The vision of the digital payment infrastructure portrayed in the documents is in fact problematic for two reasons. First, the technologies that are portraited as desirable are chosen based on industry interests and trends rather than considerations of benefits and risks that these technologies entail. Secondly, the assumption that a liberalized market will offer more and better choices is flawed, as platformisation entails risks of monopolization and abuses of market power. We suggest that policymakers in this domain should be more critical of the risks entailed by platformisation, and open their imagination to alternative technological futures.}, keywords = {digital platforms, frontpage, Platforms, Technologie en recht}, }

Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability external link

Helberger, N., Sax, M., Strycharz, J. & Micklitz, H.-W.
Journal of Consumer Policy, vol. 45, iss. : 2, pp: 175-200, 2022

Abstract

In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.

dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability

Bibtex

Article{nokey, title = {Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability}, author = {Helberger, N. and Sax, M. and Strycharz, J. and Micklitz, H.-W.}, url = {https://link.springer.com/article/10.1007/s10603-021-09500-5}, doi = {https://doi.org/10.1007/s10603-021-09500-5}, year = {0524}, date = {2022-05-24}, journal = {Journal of Consumer Policy}, volume = {45}, issue = {2}, pages = {175-200}, abstract = {In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.}, keywords = {dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability}, }

Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising external link

Helberger, N., Dobber, T. & Vreese, C.H. de
JIPITEC, vol. 12, num: 3, pp: 273-296, 2021

Abstract

Online political advertising operates in a tense forcefield between political and commercial elements and thus presents regulators with a difficult conundrum: because online political advertising is political rather than commercial speech, it is destined to follow a different regulatory tradition than commercial advertising. And yet many of the tools used, players involved and concerns triggered by modern online political advertising strategies very much resemble the tools, players and concerns in online commercial targeting. Commercial advertising is subject to consumer law and unfair advertising regulation, including rules about unfair commercial practices. Unfair commercial practices law and other rules about commercial advertising, however, are explicitly not applicable to forms of non-commercial political or ideological advertising. An important reason why this is so is the different level of protection of political and commercial speech under fundamental rights law standards. And yet with the ongoing commercial turn in advertising, the traditional division between forms of commercial and political advertising is no longer that self-evident. Also, it cannot be denied that commercial advertising law has a long tradition of thinking of where and how to draw the line between lawful advertising and unlawful persuasion through withholding or misleading consumers about the information they need to take informed decisions, or abusing superior knowledge, exerting undue psychological pressure and engaging in other forms of unfair behaviour. The question this article explores is whether there are lessons to be learned from the regulation of commercial advertising for the pending initiatives at the national and the European level to regulate online political advertising, and online political targeting in specific.

frontpage, Grondrechten, Oneerlijke mededinging, Platforms, Regulering

Bibtex

Article{Helberger2021bb, title = {Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising}, author = {Helberger, N. and Dobber, T. and Vreese, C.H. de}, url = {https://www.jipitec.eu/issues/jipitec-12-3-2021/5338}, year = {0826}, date = {2021-08-26}, journal = {JIPITEC}, volume = {12}, number = {3}, pages = {273-296}, abstract = {Online political advertising operates in a tense forcefield between political and commercial elements and thus presents regulators with a difficult conundrum: because online political advertising is political rather than commercial speech, it is destined to follow a different regulatory tradition than commercial advertising. And yet many of the tools used, players involved and concerns triggered by modern online political advertising strategies very much resemble the tools, players and concerns in online commercial targeting. Commercial advertising is subject to consumer law and unfair advertising regulation, including rules about unfair commercial practices. Unfair commercial practices law and other rules about commercial advertising, however, are explicitly not applicable to forms of non-commercial political or ideological advertising. An important reason why this is so is the different level of protection of political and commercial speech under fundamental rights law standards. And yet with the ongoing commercial turn in advertising, the traditional division between forms of commercial and political advertising is no longer that self-evident. Also, it cannot be denied that commercial advertising law has a long tradition of thinking of where and how to draw the line between lawful advertising and unlawful persuasion through withholding or misleading consumers about the information they need to take informed decisions, or abusing superior knowledge, exerting undue psychological pressure and engaging in other forms of unfair behaviour. The question this article explores is whether there are lessons to be learned from the regulation of commercial advertising for the pending initiatives at the national and the European level to regulate online political advertising, and online political targeting in specific.}, keywords = {frontpage, Grondrechten, Oneerlijke mededinging, Platforms, Regulering}, }

Platform ad archives in Article 30 DSA external link

DSA Observatory blog, 2021

Digital services act, frontpage, Platforms

Bibtex

Article{Leerssen2021, title = {Platform ad archives in Article 30 DSA}, author = {Leerssen, P.}, url = {https://dsa-observatory.eu/2021/05/25/platform-ad-archives-in-article-30-dsa/}, year = {0525}, date = {2021-05-25}, journal = {DSA Observatory blog}, keywords = {Digital services act, frontpage, Platforms}, }

Nieuws in de platformeconomie external link

De Hofvijver, vol. 11, num: 118, 2021

Abstract

De media stond de afgelopen weken bol van het nieuws dat Google en Facebook op grond van een nieuwe Australische wet moeten gaan betalen voor het gebruik van ‘news content’. In de EU hebben we al een paar jaar zo’n wet, in de vorm van een richtlijn (2019/790) die inmiddels in de Wet op de naburige rechten is geïmplementeerd. Deze zomer treed de herziene wet in werking en hebben uitgevers van perspublicaties aan het auteursrecht vergelijkbare exclusieve rechten ten aanzien van het online (commercieel) gebruik van hun digitale uitgaven. Net als in Australië gebeurde, ging de totstandkoming van de Europese wet gepaard met groot retorisch geweld van zowel de kant van traditionele media als van platformen. Digitale platforms zouden advertentie-inkomsten stelen van kranten en rijk worden over de rug van traditionele media. Persuitgevers zouden voorstander zijn van een de-facto belasting op hyperlinks, gebrek aan innovatiekracht tonen en miskennen hoezeer sociale media en zoekmachines hun bereik exponentieel vergroten, en dat gratis.

Auteursrecht, frontpage, Mediarecht, pers, Platforms

Bibtex

Article{vanEechoud2021, title = {Nieuws in de platformeconomie}, author = {van Eechoud, M.}, url = {https://www.montesquieu-instituut.nl/id/vlhef5g0pisa/nieuws/nieuws_in_de_platformeconomie}, year = {0329}, date = {2021-03-29}, journal = {De Hofvijver}, volume = {11}, number = {118}, pages = {}, abstract = {De media stond de afgelopen weken bol van het nieuws dat Google en Facebook op grond van een nieuwe Australische wet moeten gaan betalen voor het gebruik van ‘news content’. In de EU hebben we al een paar jaar zo’n wet, in de vorm van een richtlijn (2019/790) die inmiddels in de Wet op de naburige rechten is geïmplementeerd. Deze zomer treed de herziene wet in werking en hebben uitgevers van perspublicaties aan het auteursrecht vergelijkbare exclusieve rechten ten aanzien van het online (commercieel) gebruik van hun digitale uitgaven. Net als in Australië gebeurde, ging de totstandkoming van de Europese wet gepaard met groot retorisch geweld van zowel de kant van traditionele media als van platformen. Digitale platforms zouden advertentie-inkomsten stelen van kranten en rijk worden over de rug van traditionele media. Persuitgevers zouden voorstander zijn van een de-facto belasting op hyperlinks, gebrek aan innovatiekracht tonen en miskennen hoezeer sociale media en zoekmachines hun bereik exponentieel vergroten, en dat gratis.}, keywords = {Auteursrecht, frontpage, Mediarecht, pers, Platforms}, }