The European Commission launched its Digital Single Market strategy in May 2015 and with their term to finish in October 2019, the Commission is now taking stock on the progress made with this initiative so far. On May 10, the Commission released the mid-term review of its Digital Single Market strategy.

Since 2015, the Commission has already brought forward 35 legislative and policy proposals related to the Digital Single Market and much of the review focuses on the need for quick adoption and effective implementation of these initiatives. The Commission will need to secure political agreement with the European Parliament and Council in order to ensure that these proposals are adopted. However, the Commission also identified three main areas for further legislative action: (1) developing the European Data Economy, (2) tackling cybersecurity challenges in the EU, and (3) promoting online platforms as “responsible players of a fair internet ecosystem”.

Data Economy

On the data economy, the Commission is preparing a legislative proposal on cross-border flows of non-personal data within the EU, which is due to be published in Fall 2017. This “EU free flow of data cooperation framework” seeks to address the porting of non-personal data, including when customers switch business services like cloud services. The proposal shall also address how / whether certain data stored in another Member State should be made available for regulatory control purposes.

In Spring 2018, the Commission plans to launch an initiative on accessibility and reuse of public and publicly funded data. In this context, the Commission also pledged to “further explore” how public administrations could access privately held data, under clearly defined conditions, for the execution of their public interest tasks.

While the Commission did not announce any plans to launch legislative initiatives related to data liability or data access rights, it does plan to “further analyse” whether to define principles of liability for damages caused by data-intensive activities.

Cybersecurity

On cybersecurity, by September 2017, the Commission plans to review the 2013 EU Cybersecurity Strategy. The Commission shall also review the mandate of the European Union Agency for Network and Information Security (ENISA) to ensure that it is aligned with the requirements of the NIS Directive and the results of the recent public consultation.

The Commission will also work to propose additional measures on cyber security standards, certification and labelling, with a focus on ensuring the security of connected objects such as smart devices (Internet of Things enabled) and connected cars.

Online Platforms

In the area of online platforms, by the end of 2017, the Commission will prepare an initiative to address unfair contractual clauses and trading practices identified in platform-to-business relationships. Covington has produced a separate alert examining the Commission’s plans in relation to online platforms.

Regarding illegal online content, the Commission has committed itself to analyse the need for formal, EU-wide flagging and removal mechanisms for illegal content (‘notice and action’). The Commission is eager to continue dialogue with online platforms to discuss the procedural aspects and principles on removal of illegal content. In particular, the Commission is examining industry practices for some of the following issues, with a view towards promoting a best practice within the industry: minimum procedural requirements for the ‘notice and action’ procedures of online intermediaries related for example to quality criteria for notices, counter-notice procedures, reporting obligations, third-party consultation mechanisms, dispute resolution systems and coordination with public authorities as well as measures against repeat infringers and abusive, bad-faith notices. The Commission emphasised the need to avoid over-removal of legal content and to respect fundamental rights.

The Commission also plans to provide guidance on liability rules and support to platforms on voluntary measures taken by platforms who work proactively to remove illegal content.

On the same day, the Commission also published the final report on their e-commerce sector inquiry.