Brussels eclipsed as EU countries roll out their own tech rules

France promised it would regulate online platforms as soon as possible — maybe a bit too soon.

Over the weekend, the French government copy-pasted provisions from the European Union’s marquee proposals to regulate Big Tech, called the Digital Services Act (DSA), to its own bill, which is likely to come into force much earlier than the DSA itself.

“The French government introduced an amendment to the bill on republican principles, introducing content moderation obligations for social networks, in anticipation of the DSA. Let’s continue the fight against online hate speech,” Cédric O, the country’s junior digital minister, announced Saturday.

The Digital Services Act, presented by the European Commission in December, outlined content moderation rules for online platforms, including hefty fines that can go up to billions of euros if the companies fail to act. Paris now wants to integrate some of those requirements for platforms, including more transparency regarding content moderation processes, via an amendment to its proposal on countering radical Islam, known in France as the bill on “republican principles” (and initially called the “separatism” bill). The draft legislation is discussed at committee level in the National Assembly this week and could be adopted in the coming months — years ahead of the EU’s legislation.

France’s move is the latest one in a series of national initiatives to regulate Big Tech companies across the bloc, using Brussels’ plans as a jumping-off point — and the European Commission is not too happy.

Paris’ proposals focus on duty of care obligations — the protocols platforms put in place to moderate content, and transparency about how they do so — and do not suggest setting specific time frames to remove illegal content. Mirroring the DSA, the French government also wants more obligations on the largest platforms and to be able to fine them up to 6 percent of the global annual turnover for repeated infractions.

France has held off defining which companies would be labeled as large platforms for now, unlike the Commission. If adopted, the government’s amendment would only apply until December 2023, which is when Paris expects the DSA to be implemented across the bloc. 

Brussels bristles

Back in Brussels, a spokesperson for the European Commission said that Paris should notify the amendment to the EU’s executive body. The Commission would then have to assess whether it’s compliant with EU law. France hasn’t notified the amendment so far.

“When proposing new legislations, member states must comply with existing EU law. This includes the provisions on the country of origin principle in the e-commerce directive,” the Commission spokesman said. “We consider therefore that the Commission and co-legislators should now prioritize the discussion on and the adoption of the DSA.”

Some EU officials are also seeing France’s actions as a power move to ensure the EU institutions adopt a version of the bill that suits Paris.

“If the French think that this will stop the [European] Parliament or others in the Council changing the text of the Commission proposal one way or the other, then they are mistaken,” one EU official said, speaking on the condition of anonymity because they were not authorized to speak publicly on the matter.

“It merely will make discussion at the Council level more difficult,” the official added. 

Jumping the gun

France is not the only country looking to push ahead of the EU’s proposals. Others are also moving ahead with their own national laws to further varying local political goals.

On Friday, the Polish government unveiled a draft law that would prohibit the likes of Facebook and Google’s YouTube from removing content that did not specifically break the country’s rules. Warsaw said it wanted to preserve freedom of speech, but activists said the rules would ensure that the government’s messaging is not removed from the platforms in the wake of Twitter’s ban on U.S. President Donald Trump.

Austria is also plowing ahead with its own online hate speech proposals, although Vienna is keen to take more, not less, content off social media platforms and other digital networks where people post material, like Wikipedia, if they break the country’s existing hate speech rules.

It’s not just online content where national governments are eager to one-up Brussels. German lawmakers last week approved new rules that would give the country’s federal cartel office sweeping new powers to intervene in digital markets even when companies have yet to become dominant, pre-empting the Commission’s proposal regulating digital competition, the Digital Markets Act. 

Germany, like France, has long hoped to enforce rules on the biggest tech companies, and they want to move forward as quickly as possible — on their terms.

One of the main questions about the DMA will be whether the legislation allows capitals to go further.

And those with an interest in stymieing Big Tech — like the publishing industry — are calling on Brussels to give EU countries the freedom to do so.

“What worries us is if the DMA becomes a mere harmonization tool, it won’t allow member states to go further and have strong national regulation when it comes to the platforms,” said Ilias Konteas, executive director of EMMA and ENPA. (German publisher Axel Springer, co-owner of POLITICO Europe, is a member of those groups.)

But some MEPs believe countries taking tech regulation in their own hands would result in a scattershot approach. “No German DMA, no French DSA. Let’s stop the fragmentation and have one European DMA and one European DSA and work with the United States to make it global,” Renew Europe’s Dita Charanzová said last week.

In Germany, things could get further complicated when the DSA actually does go live. Julian Jaursch, of the Berlin-based think tank Stiftung Neue Verantwortung, said it’s still unclear how the EU legislation would align with country’s so-called NetzDG online content rules, which are already in force.

“The DSA is much more progressive in its intention compared to anywhere else in the world,” Jaursch said. “But we still need to know the details.”

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