12 November 2021 20th Annual International Conference, Center for Law & Public Utilities, School of Law, Seoul National University: The Wave of Digital Economy and Exploration of the Direction of Online Platform Regulation Professor Chris Marsden, Sussex Law @SussCIGR Discussion: Dr Eun-Jung Kwon (KISDI)

1. Platform Law in Europe:
Combatting Online Harms
Through Co-Regulation
12 November 2021 20th Annual International Conference,
Center for Law & Public Utilities, School of Law, Seoul National University
The Wave of Digital Economy and Exploration of the Direction of Online
Platform Regulation
Professor Chris Marsden, Sussex Law @SussCIGR
Discussion: Dr Eun-Jung Kwon (KISDI)

2. The article (and talk) is structured as follows
1. Introduction, I explain legislative reforms proposed and outline their scope.
2. I explain the competition law actions already implemented and currently
ongoing against platforms, notably app stores.
3. I explain how Codes of Conduct (CoCs) are used,
1. taking as a case study disinformation regulation.
4. I conclude by explaining that it is CoCs
1. utilised in both competition law and co-regulatory actions that are likely to be
2. the enforcement method of choice for digital platform regulation.

3. 1. Introduction
• Legislative reforms proposed and their scope

4. Platform law in 2017 became the cause
celebre of technology regulation
• regulate intermediaries who provide platforms for digital services.
• It resulted in new laws in France and Germany in 2017
• European Commission platform law agenda “Path to the Digital Decade”
• GAFAM giants: Google,
• Amazon,
• Facebook,
• Apple and
• Microsoft.

5. Hard law: the proposed European Digital
Services Act to be debated in 2022
• will be accompanied by Codes of Conduct and other self- or co-regulatory
measures.
• 2020-21, deep economic and social depression due to the COVID19 pandemic
• broadband connectivity and Internet platforms ever more vital to enforced home
workers.
• Even as legislatures introduce hard law to combat their particular favourite online
harm,
• 2021 disinformation about national ruling parties’ actions and responses to the COVID19
pandemic,
• continued emphasis will focus on giant GAFAM platforms’ self-regulatory practices.
• 2022, reforms to digital platform law will be debated in parliaments including
• the European Parliament, United States Congress and British Parliament .

6. 2. Competition law actions
• already implemented and currently ongoing against platforms
• notably app stores
• GAFAM companies have DOUBLED in market value since 2019

8. DMA proposed for 2022: digital platforms
should be subject to ex-ante regulation
Small number of “gatekeeper” platforms dominate the digital economy,
• by intermediating access between consumers and businesses;
• ex-post antitrust enforcement not effective w. conduct of GAFAM,
• Time & difficulties of devising genuinely effective remedies; and
• current EU competition law too slow and inflexible.
Existing law no means of preventing markets with a
• large but not yet dominant player
• from irreversibly tipping in favour of that company

9. What activities does DMA capture? GAFAM
DMA does not apply to entire digital sector, only Core Platform Services (CPS):
• (i) online intermediation services (e.g., Amazon marketplace, app stores);
• (ii) online search engines (e.g. Google, Bing, Facebook);
• (iii) online social networking services (e.g. Facebook, LinkedIn);
• (iv) video sharing platform services (e.g., YouTube);
• (v) number independent interpersonal electronic communication services NIIECS
• e.g. messaging (WhatsApp, Facetime, Skype), videocon apps, email services;
• (vi) operating systems (Microsoft, Apple, Google Android;
• (vii) cloud services (Amazon, Microsoft, Google); and
• (viii) advertising services provided by a provider of any CPS listed above

10. Which companies are subject to the DMA?
VLOPs: Very Large Online Platforms
Only “gatekeepers” that meet three criteria:
1. Size: annual EEA turnover of €6.5billion in last 3 years, or Market capitalisation
€65 billion in the last financial year,
2. CPS in at least three Member States,
3. Gateway control for business users towards final consumers
• 10,000+ EU business users;
• (Expected) entrenched and durable position:
• presumed if 45m MAUs = 10% of EU’s population
NOT Twitter

11. Digital Services Act and Digital Markets Act:
UK Online Harms Bill & Digital Markets Unit
• But long before this proposed legislation, there was competition law….
• Digital platform cases date to 1997:
• BiB (British Interactive Broadcasting)
• EU Remedy was more interoperability
• Not a coincidence that it changed its name to:
• Open!
• But it closed, in 2001.

12. Many current platform cases
• Google just lost its appeal against €2.4billion ECommission fine
• For 2010 Google Shopping self-preferencing case
• More 2018! €4.34 Billion Android Mobile Devices
• http://europa.eu/rapid/press-release_IP-18-4581_en.htm
• Multiple GAFAM cases:
• Microsoft lost 3 times c. €10billion fines
• Apple, Amazon ongoing
• Facebook facing multiple regulatory actions (largest fine FTC $5billion)

13. 3. Co-Regulation Example: Disinformation
• Co-regulation ultimately depends on the credible threat of the government to intervene where a self-
regulatory scheme fails to achieve its goals.
• This requires both legislative will and a coherent independent regulator with power to perform its
executive function.
• United Nations Rapporteur Khan argues for a focus on both legislative powers and effective
enforcement:
• “[s]tate regulation of social media should focus on enforcing transparency, due process rights for
users and due diligence on human rights by companies, and on ensuring that the independence and
remit of the regulators are clearly defined, guaranteed and limited by law” .
• Legislative will is required in order to persuade social media companies of their obligations and the
adverse consequences of failure to comply with self-regulatory standards in line with policy
pronouncements.

14. European Commission exploring solutions to
disinformation:
European Parliament elections May 2019
• Noting 2018 Cambridge Analytica/Facebook scandal
• over 2016 Brexit referendum & Trump election
• This gave impetus for platforms to support the
• ‘Code of Practice on disinformation’
• adopted under the keen stewardship of ECommission

15. EU Code of Practice on disinformation has
numerous problems of lack of enforcement
• Bontridder and Poullet argue that
• “[t]he Code represents a form of co-regulation that we name ‘ascendant’
• the initiative comes from private actors, content decided by signatories
• execution is marginally controlled through review by Commission” .
• Other criticized Code disparity between self-reported & actual measures;
• No independent oversight or cooperation; no audit to verify compliance;
• lack of consequences in case of breach; no mechanisms for redress .
• Thus, in reality, it was self-regulation, not co-regulation

16. 2022: Descending Towards Co-Regulation
European Democracy Action Plan in December 2020:
• “will steer efforts to overhaul the Code of Practice on Disinformation
• into a co-regulatory framework of obligations and accountability of online platforms,
• in line with the upcoming Digital Services Act” .
Bontridder/Poullet describe DSA as “descending co-regulation” imposed from above.
• DSA refers to ‘illegal content’, disinformation, stricter conditions on advertising.
• UK Online Safety Bill 2022 is vague on disinformation; Ofcom will be regulator.
• European Regulators Group for Audiovisual Media Services (ERGA) propose
similar arrangements for audiovisual regulators to regulate disinformation online

17. 4. Conclusion: More Co-Regulation?
• Hard law has its limits given the ‘Pacing problem’
• Self-regulation is often abused by GAFAM monopolists
• Combatting so-called “Online Harms” on digital platforms
• will be through co-regulation of codes of conduct,
• though with some direct enforcement
• notably of ‘app stores’ via competition law (led by Korea?)
• Note UK has proposed co-regulation via a Code of Conduct even here:
• https://www.gov.uk/government/news/new-competition-regime-for-tech-giants-to-give-consumers-
more-choice-and-control-over-their-data-and-ensure-businesses-are-fairly-treated

18. Technology lawyers know pacing
problem….always existed

19. For more information:
Sussex Centre for Information Governance Research:
• @SussCIGR
• Or find me online:
• @ChrisTMarsden

20. Select Bibliography
• Bontridder, Noémi; Poullet, Yves (2021) The role of artificial intelligence in disinformation, Discussion Paper, Namur Digital
Institute, Faculty of Law, at https://researchportal.unamur.be/en/publications/the-role-of-artificial-intelligence-in-disinformation
• Crémer, Jacques, Yves-Alexandre de Montjoye and Heike Schweitzer (2018) Digital policy for the digital era - Special Advisers’
report for Commissioner Vestager, at https://ec.europa.eu/competition/information/digitisation_2018/report_en.html
• Digital Competition Expert Panel (2019) Unlocking digital competition, Report of the Digital Competition Expert Panel, known as
the Furman report
• European Commission (2018) Antitrust: Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile
Devices to Strengthen Dominance of Google’s Search Engine, July 18, 2018, http://europa.eu/rapid/press-release_IP-18-
4581_en.htm
• European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital
Services (Digital Services Act) and amending Directive 2000/31/EC’, (2020) COM(2020) 825 final 2020/0361(COD)
• Geradin, Damien and Dimitrios Katsifis (2021)The Antitrust Case Against the Apple App Store, Journal of Competition Law &
Economics, 17:3 pp.503–585, at https://doi.org/10.1093/joclec/nhab003
• Inter Institutional agreement on better regulation 13 April, 2016, Official Journal of the European Union L123, 12 May, p1
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2016:123:FULL&from=EN
• Marsden, Chris and Trisha Meyer (2019) Regulating Disinformation with Artificial Intelligence (AI): The effects of disinformation
initiatives on freedom of expression and media pluralism, Report for Panel for the Future of Science and Technology (STOA),
Scientific Foresight Unit of the Directorate for Impact Assessment and European Added Value, Directorate-General for
Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament