The European Parliament recently approved a package of rules, of undeniable relevance to the protection of digital rights, consisting of the Digital Services Act (DSA) and the Digital Markets Act (DMA), which, in the form of a regulation, will be applicable in European territory.
The regulations establish specific obligations for technology companies and/or digital platforms, which are more burdensome for those with more than 45 million users, including Google, Facebook (Meta), Instagram, Twitter, Amazon and many others that make up "the techie friends club ", with a great impact on the life of the average citizen.
In a digital world like the one we live in, where anything goes , hand in hand with the "we'll see later" mentality, and the unforgettable slogan proclaiming that "self-regulation is enough," the European Union has decided to set clear rules for the big players in the sector, as MEP Christel Schaldemose confirmed when she stated that "tech companies have long benefited from the absence of rules. The digital world has become the 'Wild West,' where the biggest and strongest set the rules. But a new sheriff has arrived in town: the Digital Services Act."
The DSA proposes concrete solutions to sensitive issues such as, for example, the transparency of the algorithms used by search engines, which was touched upon by our Supreme Court of Justice of the Nation when it rejected the "right to be forgotten" claim made by a renowned Argentine presenter and journalist based in Miami.
Specifically, the DSA requires Big Tech companies to act with "due diligence," that is, with conduct similar to that of the "good businessman" that our civil law has recognized as a standard for more than 100 years and which, in simpler terms, implies acting diligently and in good faith towards users who generously and recklessly hand over their personal information to data shredders.
The obligations include, on the one hand, the moderation of illegal online content, maintaining a delicate balance between freedom of expression and individual rights (honor, image, privacy and informational self-determination), guaranteeing internal mechanisms to process complaints about removed content (recursive systems that demonstrate transparency and lack of arbitrariness) and to inform the competent authorities when there is well-founded suspicion about the commission of crimes or situations that endanger the lives of people.
The regulation explores a solution for the dissemination of violent, hateful, discriminatory and/or false content (disinformation) on social networks or via search engines, and seeks to guarantee the cooperation of the industry with judicial authorities in the prevention and punishment of criminal actions.
On the other hand, these companies, experts in monetizing personal data, are required to be transparent, accountable, and inform the competent authorities about the algorithms used to recommend products or content to users, especially in the case of minors or when sensitive data is used: these are the famous "comment recommendation or content positioning algorithms," which have long been used for advertising induced by profiling.
These obligations are complemented by others related to the need to submit periodic reports on their activity; the requirement of a contact point or legal representative in each member country of the European Union (a situation that we have suffered in Argentina and still suffer); the prevention, analysis and assessment of systematic risks derived from the use of their services, and the contracting of independent audits.
Finally, the European Commission is empowered to impose sanctions of up to 6% of the global turnover of the obliged entity (or even a ban on operating in the market), in the case of repeated serious infringements.
For its part, the DMA conceptualizes large internet platforms, which occupy a dominant position in the digital market, as "gatekeepers of access", which are obliged, as a general principle, to avoid any unfair practices to the detriment of their smaller competitors.
They are prohibited, among other things, from processing users' personal data to send targeted advertising without their consent; prioritizing their own services or products within their platforms to the detriment of third parties; and establishing mechanisms that hinder the uninstallation of apps pre-installed by default. The European Commission is empowered to impose fines of up to 10% of the total worldwide turnover of the obligated entity, which can rise to 20% in the case of repeated offenses.
Both regulations will not come into effect immediately, as they require formal approval and publication in the Official Gazette, and will come into effect a few months later, depending on the case.
Just as it did with the General Data Protection Regulation (GDPR), which came into force in 2018, the European Union has worked responsibly to set rules of the game for many technology companies that have been using their own “community policies” to resolve conflicts and/or problems that arise with their intervention in the digital world.
A new, serious, and responsible piece of work from the European legislator, who does not look the other way when it comes to protecting the rights of European citizens, when it comes to safeguarding their privacy and personal data.
Meanwhile, in Argentina, we continue to wait for specific regulations applicable to internet search engines and social networks, which we have been advocating for years, as well as an inevitable update to Law 25.326, on the protection of personal data. We will continue to wait, sitting down.
