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EU Policy Update - June 2019

2019-07-05 EU Policy Updates

In a nutshell: From 1 July, Finland took over the presidency in the EU Council.

The strategic agenda for 2019-2024 was adopted at the EU Summit, while telecom ministers in the EU Council put forward their conclusions regarding the future of digital Europe.The European Court of Justice delivered rulings on the nature of services offered by Skype and Gmail, while the Advocate General issued their opinion in the case of Facebook and whether the removal of content online should apply globally.

Strategic agenda for 2019-2024

Adoption of the strategic agenda for 2019-2024 at the EU Summit

On 20 June, the European Council (quarterly summit of EU leaders, not to be confused with the EU co-legislator, the Council of the European Union, mentioned below) agreed on an agenda for the EU for the next five years. ‘A new strategic agenda 2019-2024’ sets out the priority areas that will steer the work of the European Council and provide guidance for the work programmes of other EU institutions. The strategic agenda calls for increased protection of the EU from "malicious cyber activities, hybrid threats and disinformation originating from hostile State and non-State actors". In addition, the strategic agenda highlights the need to "ensure that Europe is digitally sovereign", as "the digital transformation will further accelerate and have far-reaching effects". Furthermore, "the EU must work on all aspects of the digital revolution and artificial intelligence: infrastructure, connectivity, services, data, regulation and investment", according to the approved strategic agenda.

Telecom ministers put forward conclusions regarding the future of digital Europe

On 7 June, Telecom ministers in the Council of the European Union (EU Council) put forward their conclusions regarding the "Future of a highly digitised Europe beyond 2020". One of the priorities for the next 5-year strategic agenda of the EU, according to the EU Council, is to reinforce "Europe's cybersecurity capacity", in order to "protect its digital infrastructures, products, services and users, and its global competitiveness and digital sovereignty". In addition, the EU Council highlights the crucial role of "participating in the development of technical standards for digital technologies". Furthermore, the EU Council supports the development of the "Internet of Trust, the prevention of the spread of hate speech, violent and illicit content in the Internet and combat of disinformation and manipulation of information".

Finland takes over the presidency in the EU Council

On 1 July, Finland took over the presidency in the EU Council. Finland's Presidency Programme outlines a few key priority areas that will be leading Finland's efforts during its presidency in the next six months. The Programme outlines the seriousness of "hybrid activities, such as cyber attacks, election interference and disinformation campaigns" that "aim to influence our policy-making, weaken our societies and undermine the unity of the EU". In this context, Finland aims to place special emphasis on the EU tackling the hybrid threats, which are identified as “a combination of various conventional and unconventional activities and tools used in a coordinated manner by state or non-state actors to achieve specific political objectives”. Cybersecurity in general is one of Finland's priorities, according to the Programme, which outlines the need for EU common action, "in order to enhance the cybersecurity of critical infrastructure".

Concept of 'electronic communications service'

ECJ: SkypeOut is an electronic communications service

The European Court of Justice (ECJ) has ruled that the SkypeOut service, offered by Skype Communications, that allows its users to call fixed and mobile phone numbers covered by a national numbering plan is an 'electronic communications service'. Furthermore, any software publisher who offers Voice-over-IP (VoIP) services, allowing users to call fixed and mobile phone numbers, constitutes an ‘electronic communications service’. This is provided the software publisher is remunerated for the provision of this service and concludes agreements with telecommunications service providers in order to deliver that service. The Court has also stated that SkypeOut is simultaneously also an "information society service" and that one does not automatically exclude the other.

ECJ: Gmail is not an electronic communications service

A week after its ruling in the SkypeOut case, the ECJ ruled that Gmail cannot be considered an ‘electronic communications service’. Furthermore, the ECJ considered that a web-based email service which does not itself provide internet access, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an ‘electronic communications service’. According to the ECJ, "the fact that the supplier of a web-based email service actively participates in the sending and receipt of messages, whether by assigning to the email addresses the IP addresses of the corresponding terminal devices or by splitting those messages into data packets and uploading them to, or receiving them from, the open internet for the purposes of transmitting them to their recipients, does not appear to be sufficient to enable that service, on the technical level, to be regarded as consisting ‘wholly or mainly in the conveyance of signals on electronic communications networks’" under the respective definition of an electronic communications service.

Intermediary liability

ECJ: Advocate General releases opinion in the case of Facebook and the cross-border removal of information

This case concerns defamatory comments made on Facebook regarding an Austrian politician. The referring court in Austria has asked the ECJ whether a social media platform like Facebook can be asked to seek and identify statements with identical wording/equivalent content across all of its platform worldwide as part of an injunction in a concrete case. According to Advocate General’s opinion in this case, a court can issue such an injunction with regard to statements with identical wording (but not equivalent content, as the latter can lead to censorship) across all users. When it comes to equivalent content (which is not identical) to a defamatory comment, a hosting service provider can be ordered to seek and identify such equivalent information but only among the information disseminated by the user who made the defamatory comment in the first place. Regarding the question of whether Facebook can be ordered to remove defamatory content worldwide (not limiting itself to the jurisdiction of where the defamation case is handled) the Advocate General stated that in theory, the court of a Member State may order the worldwide removal of information disseminated via the internet, however the court needs to exercise self-limitation in order to respect fundamental rights. Thus, according to the Advocate General, "instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking."

Outside the EU bubble

UN High-Level Panel on Digital Cooperation issues its final report on the future of Internet Governance

The UN High-Level Panel on Digital Cooperation was established by the UN Secretary-General in July 2018 to advance proposals to strengthen digital cooperation among governments, the private sector, civil society, international organisations, academia, the technical community and other relevant stakeholders. On 10 June, the Panel issued recommendations that aim to serve as a foundation for future multistakeholder discussions on digital cooperation and internet governance. Some of the notable excerpts from the Report highlight the need to exercise caution with digital ID systems that should be introduced into national systems "only after a broad national conversation” and if they “allow for voluntary enrolment and viable alternatives for those who opt out". The Report also identifies a concern over the unintended risks of regulations in the digital sphere, when "legislators have insufficient understanding of complex digital issues to develop and implement policies". The Report also proposes to strengthen the role of IGF and the UN system to maintain the multistakeholder model of internet governance. The so-called IGF Plus model has been suggested to address the IGF's current shortcomings, such as the lack of "actionable outcomes" and the "limited participation of government and business representatives".