Digital Signature Lawfulness for Business Transaction Management in European Union

How to eSign a document: digital signature lawfulness for Business Transaction Management in European Union

As Panelists have said a few times today. Government regulation is a piece of this complicated puzzle. So I am pleased to kick off this next panel by introducing provide Agarwal and Gerard de Graaff, the head of unit for e commerce and platforms and the director for digital transformation, respectively. At the European Commission's DG Connect. Many of you have heard about the European Union's Digital Services Act or the ESA, which is the use attempt to put forward a rights, respecting and democratically informed approach to platform governance. We're in for a treat because providing Gerard are the foundational drafters of this landmark regulation. Don't think I'm saying anything Controversial. When I note that here in the United States home to many of the world's largest platforms, we have yet to have a cogent national level conversation about regulation. And avoid all sorts of countries around the world and even states within the US or driving the conversation and setting the rules of the road. And many of these approaches are anything but democratic. So this DSA is more than just an EU regulation. It's a potential model and the only fulsome democratic standard with which to engage at the moment. I'm going to pass it over to provide and Gerard to give a short presentation on what exactly the DSA is and what is trying to accomplish. And then we'll come back for a conversation, including questions from those of you watching at home to dig in a bit more about what the de ESA could mean for democracies globally. So with that, providing Gerard Thank you so much for joining us today. It's afternoon. We're evening and Brussels. It's a pleasure to be hosted by you were very much looking forward to an interesting discussion on the Digital Services Act. I think one thing is clear where as policymakers as as this kind of government officials this as interested observers, I think we're all looking at What role these digital ends meet, use these platforms play in our lives and how they should be kind of governed there and to make sure that kind of the Internet remain state. Pluralistic and safe place to engage in to do business of we prepared a few slides. The debate is ongoing in Europe were negotiating now on the Digital Services Act in the European Parliament, Indian the council, so it's very timely now to have this Debate. I will take a few of those slides and then provide will take over and very much looking forward into two questions and answers Well, the first flight is just the title slide, so maybe we could move to the Next slide. This is a I mean, a very simple and actually, I mean, obvious lied, and it says the world has changed when we, uh for first regulated and it's still the regulatory framework in the European Union is called the Electronic Commerce Directive, which was adopted him. 2000 and 20 years ago, and it's been around for for that long. Um and the world has changed. I mean, a lot of say the activities that we know now we're not around, say when we were designing the Commerce directive. Platforms have become much more important to our lives in terms of social media in terms of market places. They are also very important vehicles for small businesses in Europe, medium sized basis is to reach their that their customers so it is timely now to look at that framework in new European Union and To decide like what can still be maintained. What has worked well, but also how can it be updated? Maybe we can take a look at the at the next slide altogether, as lets him in 10 slides that the next slide, I think, what is the main message there is this isn't just about large platforms. I mean, obviously, we often are kind of it's focused on. Well, what about Facebook? What about Google and YouTube. But in Europe, we have 10,000 Platforms. Most of them are are small. You will probably not have heard of many of them. You probably know Spotify. Maybe you know zalando it. Maybe a few others you've heard of. But two large majority are Very small. We, Of course, if you look at, say the Big Five platforms are very large, not just largest platform bit large. If you compare it like they are kind of about a quarter of the EU economy as a whole. Sure. Don't say he's very big, very, very powerful companies. But what, of course, the ambitions of the European Union that comes back into the objectives exactly want also in Europe platforms to grow it to be successful and and developing to to European and where possible, globally successful companies. Go to the next slide. These are the objectives and actually, one of the objectives that I should highlighted it comes from the previous slide is that it is difficult to scale in Europe because Europe is fragmented. The rules are not the same. We have 27 member states. They have different rules and regulations. And therefore, if you're successful, small platform in one of our member states and you want to scale up you need to go to other member states. You need to adjust your business model. You need to check out what are the rules that apply to me? And that slows you down and the Internet is all about scale and speed. So before you actually reached the scale and speed, it takes a long time, for example, Spotify how did it grow? It started in Europe. It went to the U. S. It got scared in the U. S. And then it came back to Europe in it. It completed its coverage in Europe. So the digital single market one set of rules. For the whole of the European Union is a critical objective, but obviously also and we need to modernize the rules. So we are dealing with a a challenging societal issues about illegal content, systemic risk in your ninth space. We need to make sure that kind of the Internet remains safe space that there isn't room for illegal content. There isn't room for dangerous products. Unsafe products on their on our markets. Uh, places. We need to clarify some of the rules, for example, liability and we need to make sure that the liability works well, that's been your companies are exempted from liability. Even if there's actual knowledge, that it and the information that there's something illegal on their services on that transforms and they act expeditiously and so that principle is very solid. We intend to maintain it, but it needs to be kind of Clarified a bit how it should work in the future and last but not least we need to kind of make platforms more accountable. We need more transparency. We need better cooperation between competent authorities. We need better oversight will give you in in in a minute kind of insight in how we will do that. Let's turn to the next night before the property takes over. Well, this is a big ton of the difference between the commerce directive which is not going away. We went tainted. We build orders. So we'll do we build on the e commerce directive will essentially We build would be called due diligence obligations, which is in the right hand college So we are going to defined or we're defining in the Digital Services Act responsibilities. Their platforms will have to comply with depending on their side. So it's an AES symmetric obligation. You're very large, very big. You need to carry greater responsibilities compared to if you are small. If you are in a very much kind of a user consumer facing position like a social media company, you have greater responsibilities. And if you like more a hosting service in the European Union, so these two diligence obligations are the hardcore. Of the digital services. Acne will identify some of them in the next slide. We also need to work more closely together between the member states and this is the complexity of the European Union. We are different countries, so these different countries need to work together. The rules that apply to platforms are the rules in the country of establishment. Most of the cases it's Ireland reduction Berg. But of course, the countries that are so called countries of destination need to be very actively involved. So we have got some innovative, innovative ideas how to improve. The governance and the supervision of these. These platforms large and small in the European Union. I hand over to Prada. Thank you, Sherrod. It's a pleasure to be here this afternoon. We can go to the next slide. And, um I only have a few more slides to take you through the basic architecture of the Digital Services Act. Just following on From what Jura has just told us. I think one of the key elements is that we are made a. We've designed the Digital Services Act to be differentiated ing to the role and the size that a particular intermediary service has In the online economy, So we have, uh, a cascade of rules and the cascade of rules. It starts from what you may call infrastructure intermediaries, so they really are the access providers and And and and domain name registries or, um, kind of WiFi connection points and and and then we scale up the architecture of the DSA A with additional due diligence obligations. First for hosting services. Those are kind of cloud infrastructure structure and Web hosting services. They are actually the category that was originally regulated in Europe back 20 years ago. And we've added two new categories. Online platforms includes marketplaces or APP stores or what we call in Europe collaborative economy platforms in the U. S, sometimes known as Gig economy platforms up but also social media services. And then we have in this identified a particular category or what we call very large online platforms, and those are the ones that reach more than 10% of EU population, So they use it and And those are the ones that are then subject to the most comprehensive catalog obligations Now before and the next side, I will show you the the catalog and give you some flavor of the different obligations that we have imposed. Just wanna, um stress. One thing is that it's not only about Obligations and due diligence of, of course, this is the novelty of the Digital Services Act. But we also have maintained the immunization from the party content that is similar to section 2 30. In the in the U. S. Although I want to say right at the outside that in the EU, Um the immunity is not as broad as as as it is in in section 2 30. It's more conditioner like, uh, what create already alluded to it has a so called knowledge standard. This may sound a bit abstract and weird, but is actually something that's tried and tested and has been tested in court for 20 years, and there's a lot of Experience with this and and we basically maintain this, but there's also in coming back to what Rose said in the introduction. There are a lot of rights protecting elements in this, so it's not only about due diligence obligations. So what do you process obligations about transparency obligations about Also, uh, transparency towards, for example, government orders for for content takedowns as well. So on the next side, I can only give you a, um A quick snapshot is probably too small for you to read unless you zooming into, uh into this. So you see again horizontal leader. Four categories of, um Of intermediaries that we have a very large online platforms has the most extensive catalog and infrastructure intermediaries on the right hand side. They have a very limited catalog, but still very important. For example, we have some obligations that Terms and conditions must be right. Respecting, um, they must be, um, they must be diligently applied. So this is in response to, um, an observation and evidence that there is some degree of arbitrariness in the way that terms and conditions. Sometimes implemented and changes their basic rules and transparency reporting for all intermediaries across the board, which we think is very important to know what's going on. And then, uh, there are some some some catalogue some obligations which we were familiar to. You notice an action mechanisms very similar to what in the U. S. Is the DMCA a procedure for for copyright, But we've, um, designed to cover all types of content in the European Union. Uh, there are other Types of content, which are illegal. For example, Um, child sexual abuse material is a is a is a is a continent illegal across the board. Um, and then we have a whole range and I won't go into all the details, but maybe the two elements that I want to highlight is on the bottom left corner. With a very large online platforms. We have a new obligation for systemic risk assessments, and that also captures issues of disinformation, an election manipulation and we have a very wide ranging, um, catalogue of obligations on data access. And transparency for recommended systems, transparency for advertising systems. And and and so the main message on this slide is that not only is there a big catalog of, uh of obligations, particularly for the one large ones, which we believe captures The majority of emerging issues that we have at the moment, but and we'll come to the next slide. The DSA is also going to, um have laid very solid foundations on the, um, rights protecting elements that we have. Um, in we think are really important there so on the next slide If we just okay. Interesting, right? We just a brief word about the governance structures. This is also relatively new, there would be independent authorities in member states supervising the Digital Services Act. They come together in a kind of board for digital services, and they can give guidance as well. An emerging issues this is something that at the moment is missing in the commission, also historic and forcing powers as well. And just on my last slide. Uh um I wouldn't just highlight highlight some of the benefits and I won't over blow you away because I think we're more interested in the details of Of the discussions that we would have right now. But one of the key points that I want to highlight is that I think we've designed the Digital Services Act to help users and users. And they should have choice online they should have. They should be safe online and the user rights should be respected, particularly freedom of expression online. This has been a guiding principle of our design. At the same time, authorities do get new powers including sanctions, and I didn't mention it. But what is the most interesting part of the DSA for me? Is that the they will generate a huge amount of regulatory data for the public of for the purpose of public supervision. And I think this is a really interesting way because we try to Regulate the data economy, also by generating data through data. Independent researchers have a specific role in in in looking at what's happening on, um on the platforms as well. But platforms also benefit from a single set of rules. Across the European Union. So with that I stopped here. This is the last slide just slightly over time and rose back to you for hopefully a great discussion. Thank you so much. That was excellent. Um, I think maybe a soft well to start us off, which is just if you can speak a little bit about the process. Uh, that brought us to this point. What did the drafting look like? Who did you speak to? What are the consultations like, and where does it go from here? Is this locked in or their opportunities for members of the community to provide input? How did things get changed over time? I can start. I can kick this off. I think we're actually the design process of the European commissioners were quite proud of it. And so this is first of all this work has been not done just in a short period of time it is building on. Almost a decade of experience with online platforms and many, um self and co regulatory processes that we've been carrying out whether it's some disinformation on on hate speech online on unsafe products, and so on. We've been running many collaborative projects with online platforms and And the Digital Services Act is really informed and actually builds on on that experience. It also builds on some experience in national laws like maybe some of your, uh you know, the audience have heard about German proposals on the Nets, D G. And so and so we've taken I think the best of that, uh, into the into the do you say there's been a long public consultation with more than 3000 contributions? Um We've had more than 250 meetings with with different stakeholders are interested parties in the preparations and extensively consulted also with European Parliament in the run up to that And and now in December, 2020 we proposed the draft law and now it is in in discussion with the European Parliament and the European Council. That's where the member states come together. Um And so they are discussing and amending the commission's proposal. At the moment. This is an ongoing process. We expect that this both of these other institutions, the Parliament and the European and the Council of the European Union will come to their positions at the end of the year and then Hopefully, the expectations are that early in the first half of next year, the law will be adopted. So still at this moment, um there's some fluidity, um, rose. And so I think Parliamentarians in particular, are debating the best way forward, and this is an ongoing legislative process. Thank you, and I assume some in our audience are familiar with a bunch of acronyms floating around Right now. There's the digital markets Act. They may already be familiar with the European data protection, uh, regulation as well as the EU democracy action plan and other things. Can you give us just a little bit of sense of how these things fit together? As well as what is the DSA? Not where does it stop? What are you not trying to do with the de Esa? I can maybe give an answer here. Do you mean the DSA was proposed at the same time as the DNA? The Digital Markets Act both came out in December. The Digital Services Act is very much about responsibility. It's about keeping the Internet safe and to ensure that our values in the European Union and our freedom Speech of fundamental rights are adequately protected. So that's the kind of did the objective division behind it is to services that can, of course, to make sure that I digital single market. Can work well. The Digital markets Act focuses on Would be called contest ability, so competition in the market. I mean, we are, of course, dealing with some very powerful platforms that in some cases are so powerful that they can set the rules of the game. And since a lot of kind of other companies and users depend on these platforms, it is in the interest that competition works. As effectively as as possible. So that's the digital market checked, where we identify a number of practices, which we could call unfair and therefore these practices will after adoption of traditional markets are no longer be allowed, for example, self preferences. So does are two kind of that's the package of measures that are now going through the legislative process in the European Parliament and in the Council of the European Union. The GDP art has been around for some time. I mean, it's four or five years now. And of course, before that, there was the data protection directive. This is, I think, quite well known in the U. S system, and of course, there are Inter linkages. I mean, we talk about the data economy and death will kind of data platform views often data in order to, of course, for example, target their advertising or to gain competitive advantage. So that read across with the GDP are is very important. We have other measures out as well as additional whole kind of set of measures. But the digital services acting the digital market sector, I definitely say the most important measures at the moment that are on the negotiation in the your opinion. Thank you so much. Add. Oh, yes, By all means jumping used to answer your question Rose. What the Digital Services Act is not. It's not an instrument to tell people what can be said, and what cannot be said online. This is not an instrument for authoritarian regimes to dictate what people how people can express themselves online. This is for sure something that it is not It's also not the Ministry of truth when it comes to, um, disinformation or those related problems, and that's that's very important to say so. It's not Say regulating what can be said online but an analogy that I sometimes use that it is regulating the the the fire exits the alarm buttons. The um the all the safety features that we would expect if you go to a shopping mall or two concert hall, But it's not saying anything about what can be saying Well cannot be said all night. Excellent. I wanted to turn to one of the more specific elements and I think in a bit, we're gonna hopefully be able to talk about transparency. Um, but on the question of liability and enforcement if you could share a little bit about how that is going to work, there's obviously some penalties that are built in. There are a lot of questions that people have around the role of courts in enforcing violations. So could you give us a sense of what that looks like as well as what Some of the protections are. To guard against political interference in the enforcement of the regulation. Sure, Uh, excellent question. So, um, of course, Carter in the European Union, the ultimate arbiter of what is illegal online. And what is what is not illegal. I mean, this is something that ultimately has to be established by courts and Also in the European Union. We have the charter of fundamental rights and access to judicial remedy is always a fundamental right and needs to be guaranteed at all times and independent of any of the procedural Rules that we we have. Well, we have put in terms of safeguards. Let me start with that into to the digital Services Act. Um, a lot of processes in parallel first, of course, First of all. Knowing the rules of the game. Um this is the transparency obligation on terms and conditions are for what can be said on your platform. Say it up front. Um, so say And then and then be diligent and enforcing that that's a that's a first safeguarding is empowering users to know what the house roots are. Then we have a whole range of safeguards against Um, against erroneous or excessive takedowns. Uh, you know, there's an intense internal complaint mechanism. There's an out of court dispute settlement system. Um, there. There are ways that you can you can always go to court. There are ways that you can raise complaints individually to your national authorities. You can also see the rights organizations can take collective actions. So this is just to give you some flavor of some of the safeguards that we have. In in the Digital Services Act. I think, um The roads, of course, is very important, And it's also recognized in the Digital Services Act. For example, one way that we have of dealing with illegal content such as child sexual abuse, material or other types of illegalities in in the European Union is by, of course, to send injunctions. And these are very interesting tools. These are typically no fault injunctions. They get sent to an intermediary, saying this this is has to be in this court establishes that something is illegal. And it has to be taken down based on on on and we've we've got some rules and clarifying, for example, what the territorial scope of such an injunction should be how precise it should be, and that's put into the Digital Services Act. So so we think this is a very the role, of course, is very important. And it's fully recognized in the Digital Services Act. So just to give you a little bit of a flavor of some of the safeguards we put in place. I'm a Rose. I think What is important is that we take a systemic approach here in the EU. We often compare kind of the supervision of like this the platforms to the supervision of banks, insurance companies, and so you want the systems to be sound. Are there going to be mistakes? Are they going going to be kind of illegal conduct? Yes. I mean, this is business not going to be 100% kind of foolproof mechanism, but But you will see in some of that you did. It is urgent obligations that we are really focusing on this systemic. I mean, in some of the terms of fit and proper. Know your business, customer risk management, independent audits, etc. Are kind of have been borrowed from the world of banking into this into this world. So we do not defining the digital services that what is illegal and what is not illegal that is defined another pieces of European law and in some cases where we don't have like European definitions of illegal it's defined at the member states level, so this is very much about systems and processes and checks and balances. Can be put in place, and I think it's important to have that perspective in mind. Thank you, Uh, before we move on to transparency, I just want to come back to the question, however, a political interference, I think in a human rights community. There are a lot of concerns over some antidemocratic trends in some EU member nations. And so how do you think about the boundaries in that systemic approach to ensure that, uh, a nation is not able to go after a platform or go after speech on a platform? For their own political reasons or with the intention of shuttering civic space. It's a tough question Rose and and we from stress tested the DSA against some of these some of these scenarios, But of course, you know, a feature of, um authoritarian regimes is typically also or autocratic regimes is that there? Not rights respecting in the first place. So so, uh, there are safeguards built in and notably actually helping users to raise issues. There are safeguards in in the board's structure, where national coordinators come together. And exercise a degree of people peer review and peer control over each other. The role of the European Commission as the guardian of the treaties is enhanced. And can step in in in certain circumstances, particularly in the very large online platforms regime. The role of civil society is strong in, uh, in the in the digital services acting in various either. In intervening for in the collective interests of users. So if, for example, the platform is subject to kind of large scale bands or or speech controls, and, uh, the service civil society is Has new rights and empowerment to take issues to court. On behalf of a collective representation. Um, so, um, Those are some of the those are some of the instruments that we have put in. Of course. Member states and the European Commission and all the European institutions are bound by the charter off in the middle, right. This needs to be respected and and, uh and the European Commission is at the moment. Very active in defending the charter, and I think that this we expect that also, this will continue to, um to be the case going forward, and it's kind of the bedrock on which the Digital Services Act. Will sit if I may say so. Enforcement in the way future life. There is no possibility for a single member state in the European Union to dictate to a platform what its Children should not do with the member state in the country of origin, disagrees. No action will be taken and then it will be kind of raised to the level of the European Union. So the system is full of checks and balances. It is going to be very difficult. Or a single member state. I mean, we live under the rule of law, so let's not give the wrong impression to us that kind of we have a major problem. We have some issues with comments some regimes in the European Union, but System has been well, uh, fought through to make sure that I mean it. Not be abused by Those who want to suppress like freedom of speech. Maybe I can just add one element, which I think is really also strong in the Digital Services Act, and I don't want to blow my own trumpet too much, But it's the public accountability of what's going on Excessive government takedown will lead to a data trace that's that's public. And it can lead to scrutiny about what's going on, and I think it's this kind of screening that we don't have. At the moment. Some companies are publishing voluntary transparency reports. You know the partial They don't have detailed geographic coverage. Time time stamps are not available. But this kind of public accountability also to say for for the for the whole world to know what's going on. This kind of data is going to be generated. So if it is abused by some authority, we'll leave a trace, and it's a it will leave an unmistakable trace, and that should be also a route on which for the action can be taken by all actors in society, not not just the rule of law, which we as Riyadh said it is very important for us. Thank you. That's actually a great Segway to what I want to make Sure we cover with just a few minutes left, which is we're at a conference. That's a gathering of the world's open source researchers. And so there's a lot of excitement about the transparency provisions within the regulation as it's currently written, as well as some questions, and so one to start with is if you can I'll pile two in a row. One is I think a lot of people are focused on the limitation of academic institutions is the As as a requirement for having access to the data that you're requiring platforms quite excitedly to have to start providing, um are there opportunities for organizations like the Afar labor, the other independent researchers around the world to be able to access that and then the second thing is just if you can speak a bit to what it is that you think particularly in that space, the U. S and EU can collaborate on and the global community dedicated to human rights can collaborate on As you push forward this major experiment in shaping the governance of technology. Those are you know tiny questions for you in the last few minutes. Take the easy one. The first one in I let you out. Take the second one, which is exciting, actually, and now be very brief. I think that the perimeter to academic institutions is being discussed right now. I mean, it's something that has been raised from from various points. I think our key message on definition of academic researchers is that there needs to be some kind of boundary about who has access. I mean, it's not reasonable to give access to everyone to the platform data. It needs to be some criteria in their spit out whether then the definition of academic institutions in the DSA is the right one or not. I think this is something that's still being debated. Thank you. On the second question. I mean, as you know, I mean last week at the summit here in Brussels speaking EU and US agreed to launch the Trade and Technology Council where this issue of platform kind of regulation technology, personal regulation will be very prominent, so we're very much looking forward. Working with the U. S government and, of course, the stakeholders to defend it, Um, common approaches because I think it's really important that the EU and the US In this world where indeed, there are autocratic regimes that are kind of restricting freedom of speech are are using technology to to take away freedoms or two to keep people kind of really in kind of on the soup surveillance. That we as the US and the EU. With our democratic societies, our values we offer a positive alternative model to be a show that I think is really important. And then we would Really like to see where we can put more closely corporate on on certain issues, maybe around and access to the data as we just discussed, maybe on unnoticed connections, so we are going to engage very short. He was the U. S administration and also recommended everybody kind of contribute their views where the kind of the EU and the US can can make most progress in the in the next couple of months on on these issues, but it's really a great opportunity. To work together. Thank you both so much for taking the time. I could talk to you for probably another hour and I'm sure audiences many more questions. But we're so grateful for the time that we got and very much look forward to continuing to work with you and invite as you mentioned the entire community present watching here following us online, uh to closely follow and feed into this exciting opportunity to try