Silicon Valley groups are likely to see the EU’s move as an escalation of aggressive steps in Brussels to regulate big online platforms
Silicon Valley groups are likely to see the EU’s move as an escalation of aggressive steps in Brussels to regulate big online platforms © AFP via Getty Images

The EU is considering two-tier legislation to impose greater responsibility on Big Tech over the removal of illegal content and the fight against counterfeit products, in the first overhaul of the bloc’s internet rules in two decades.

According to an executive summary from the upcoming Digital Services Act seen by the Financial Times, Brussels’ preferred option is to adopt “asymmetric measures”, where large tech companies are subject to greater scrutiny and penalties than their smaller rivals.

The move comes as groups such as Facebook and Google are accused of using their clout to undermine European rivals, and confirms tech giants’ worst fears that the new EU rules will hit them particularly hard.

“Asymmetric measures with stronger obligations for very large platforms, further clarifications of the liability regime for online intermediaries and EU governance with reinforced oversight and enforcement . . . [is] the preferred option,” the leaked document said.

“Asymmetric rules will ensure that smaller emerging competitors are boosted, helping competitiveness, innovation and investment in digital services, while targeting specific harms emerging from large platforms,” it added.

The document also noted that this distribution of responsibility could lead to a 1-1.8 per cent increase in cross-border digital trade.

Big Tech companies, many of which are based in Silicon Valley, are likely to see this move as an escalation of aggressive steps in Brussels to regulate the large online platforms, seen as “too big to care” by EU commissioner Thierry Breton.

The summary did not expand on how the sliding scale of responsibilities would work or how the EU would determine which platforms needed to comply with tougher rules. However, regulators are setting criteria to define what they call “gatekeeper platforms” in a separate piece of legislation called the Digital Markets Act. Criteria for this may include the number of EU countries the companies trade in, revenue size and user numbers, people with direct knowledge of the plans said.

Regulators warned that European citizens were exposed to a growing number of risks online, but particularly on “very large platforms”, given their power to reach billions of users.

The confidential document said the policing of digital services was “to a large extent uncoordinated and ineffective” in the bloc. It also said that piecemeal legislation driven by each member state had acted as a block to the proper functioning of the single market, giving large incumbents a “competitive advantage”.

The release of draft legislation has been delayed twice and it is now scheduled for December 15, though some EU officials have warned that the timing could slip into 2021.

The European Commission declined to comment on the leaked document, but a spokesperson said on both the DSA and the Digital Markets Act: “They are a centrepiece of our digital strategy and will create a safer digital space for all users where their fundamental rights are protected as well as a level playing field to allow innovative digital businesses to grow within the single market and compete globally.”

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