11 July, 2016
Concluding the first half of 2016 and with the summer recess ahead, the Netherlands has now handed over the EU presidency to Slovakia; a good moment to take stock of European developments around online platform regulation.
Before recess, the European Commission published its policy-views for online platforms as part of its Digital Single Market Strategy. In general, the Commission seeks to steer clear of overly enthusiastically regulating platforms, choosing only to do so if it solves specific problems.
Additionally, the Commission has chosen not to change the current liability regime for intermediaries. In the policy agenda for the sharing economy, published early June, the Commission took the same line: regulating the sharing economy would come at the expense of the opportunities it provides.
The Commission’s decision can be considered a big win for the Dutch government which has strongly defended said position, offsetting German and French urges to regulate online platforms. The Dutch government wants to provide actors with ample space to innovate even if this affects vested interests. At the same, the Netherlands wants to ensure a level playing field which can be attained without regulatory intervention at EU level. In view of the Netherlands, if problems do emerge, they must be resolved locally. Exemplary are the Airbnb arrangements with Amsterdam.
While the above is good news for online platforms, three things should be noted:
- Peripheral legislation will introduce new rules for platforms. The NIS Directive – for instance – introduces a cybersecurity ‘duty of care’, and an obligation to report cyber security incidents for online marketplaces, search engines and cloud computing services. Meanwhile, the ePrivacy Directive (the cookie law) is being evaluated.
- The downside of the steering clear of EU legislation for online platofrms is that it leads to fragmentation. In the case of AirBnB for instance, this becomes a problem if the absence of uniform regulations forces it it to make agreements with all European cities.
- In the absence of EU regulation, Member States will take the initiative to curb or substantially regulate online platforms. Berlin banned Airbnb because of the housing market in the city, in France Uber is increasingly under pressure in favor of taxi drivers.
Concluding, online platforms clearly remain an important topic of discussion. More so as, with Brexit, the Netherlands loses an important ally in its fight against platform regulation. The Netherlands will now have to punch above its weight to further the interests of innovative internet services in the EU.
Director Public Affairs Practice