The European Commission released the DMA (Digital Markets Act) to regulate digital gatekeepers. MEF CEO Dario Betti shares a summary of the current consultation underway, MEF’s evaluation and an invitation to our Members to join the collective response from the Mobile Ecosystem Forum.
The European Union’s Digital Markets Act (DMA) is a framework law drafted in 2022. It aims to stimulate choice and fair competition in those European markets where some online platforms or “gatekeepers’ have become large enough to create ‘bottlenecks’ in online services.
The act is now being refined with definitions and instruments, with a view to be enshrined and enforced as of 2024. The sister legislation of the DMA is the Digital Service Act (DSA) and is aimed at controlling other specific services within a similar timeline.
The platforms under evaluation include OTT communication services, search engines, social networks, video sharing platforms, operating systems, cloud computing, advertising, web browsers, and virtual assistants – the ‘gatekeepers’ are defined as companies that have:
- An EU turnover above €7.5 billion in each of the last three years or a market capitalisation of +€75 billion in the last financial year
- Operations in at least 3 EU member states.
- Services being provided to more than 45 million users.
I invite all MEF Members to add their collective voices to the consultation by sharing your thoughts in the form below which we will gladly collate and put forward to the DMA in a timely manner – please submit your feedback by September 12th.”
The European Commission has also shared what information they expect will be prohibited for gatekeepers, such as favouring their own services in online rankings, not allowing linking outside their own platforms, preventing users from uninstalling preinstalled software or apps, and tracking users across their services without proper consent from users.
Failure to comply with the gatekeeper rules could lead to potential fines of 10% of the company’s total worldwide annual turnover. The figure can reach 20% for repeated infringements.
The consultation
The subject of the fourth consultation on the DMA (released on July 31st 2023) is the Article 15 audit obligations for gatekeepers, detailing their consumer profiling activities and the templates they will have to use to report to the EU.
In its current form the template requires the gatekeepers to present an external and independent audited description of the data and profiling techniques that they use, as well as a non-confidential account of each profiling technique.
The information shared by the companies will include the type of data collected or created about consumers, the purpose of and the definition of each of the profiling methods. Also, the impact of profiling on the gatekeeper’s business, and the legal justification as to why the data can be used. Data-related matters are a core strategy to create barriers and diversification for digital service. Potential misbehaviour regarding data are a cornerstone in the DMA structure. Hence, this template is key to determining the actions of the regulator.
The DMA points to the GDPR regulation for the definition of the profiling method. In Article 4, profiling is described as ‘any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.’
MEF Comments to the Consultations
These following are areas where MEF members might consider improving the Template:
- The definition of consumer profiling is key to the template document, yet we find in there a reference to the GDPR definitions, that might require an update in scope. The emergence of AI could expand the potential aspects to include creative output, work, appearance, or voice. The definition of processing might include other outputs or processes.
- Definitions of Algorithms are becoming more difficult to obtain or understand in the era of artificial intelligence and machine learning. A clearer focus on input data and output models (goal specific) is more likely to provide an understanding of conduct.
- The specific attention to minors is laudable but should not be placed in the Digital Market Act. This should rather be deployed to all players at service level (in the Digital Services Act) as it cannot be regulated as a matter of competition law and market access.
- Equally consent from consumer is a key requirement in digital services, and for all digital services. It should not be seen here to apply only to gatekeepers.
- The qualification of Auditors independence needs to have a clearer definition.
So far we have identified the following areas for further inquiry. I invite all MEF Members to add their collective voices to the consultation by sharing your thoughts in the form below which we will gladly collate and put forward to the DMA in a timely manner – please submit your feedback by September 12th.
Join the Discussion
