Activities of Irena JOVEVA related to 2020/0374(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act)
Amendments (36)
Amendment 65 #
Proposal for a regulation
Recital 25
Recital 25
(25) Such an assessment can only be done in light of a market investigation, while taking into account the quantitative thresholds. In its assessment the Commission should pursue the objectives of preserving and fostering the level of innovation, access to public information entailing the making available of information non-discriminatory to a potentially unlimited number of persons or users in general, the quality of digital products and services, the degree to which prices are fair and competitive, and the degree to which quality or choice for business users and for end users is or remains high. Elements that are specific to the providers of core platform services concerned, such as extreme scale economies, very strong network effects, an ability to connect many business users with many end users through the multi- sidedness of these services, lock-in effects, a lack of multi- homing or vertical integration, can be taken into account. In addition, a very high market capitalisation, a very high ratio of equity value over profit or a very high turnover derived from end users of a single core platform service can point to the tipping of the market or leveraging potential of such providers. Together with market capitalisation, high growth rates, or decelerating growth rates read together with profitability growth, are examples of dynamic parameters that are particularly relevant to identifying such providers of core platform services that are foreseen to become entrenched. The Commission should be able to take a decision by drawing adverse inferences from facts available where the provider significantly obstructs the investigation by failing to comply with the investigative measures taken by the Commission.
Amendment 69 #
Proposal for a regulation
Recital 36
Recital 36
(36) The conduct of combining end user data from different sources or signing in users to different services of gatekeepers gives them potential advantages in terms of accumulation of data, thereby raising barriers to entry. To ensure that gatekeepers do not unfairly undermine the contestability of core platform services, they should enableoffer their end users to freely choosean option to opt-in to such business practices by offering aboth less personalised and non- personalised alternative. The possibility should cover all possible sources of personal data, including own services of the gatekeeper as well as third party websites, and should be proactively presented to the end user in an explicit, user-friendly, clear and straightforward manner.
Amendment 75 #
Proposal for a regulation
Recital 42
Recital 42
(42) The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non- transparent and opaque. This opacity is partly linked to the practices of a few platforms, but is also due to the sheer complexity of modern day programmatic advertising. The sector is considered to have become more non-transparent after the introduction of new privacy legislation, and is expected to become even more opaque with the announced removal of third-party cookies. This often leads to a lack of information and knowledge for advertisers and publishers about the conditions of the advertising services they purchased and undermines their ability to switch to alternative providers of online advertising services. Furthermore, the costs of online advertising are likely to be higher than they would be in a fairer, more transparent and contestable platform environment. These higher costs are likely to be reflected in the prices that end users pay for many daily products and services relying on the use of online advertising. Transparency obligations should therefore require gatekeepers to provide advertisers and publishers to whom they supply online advertising services, when requested and to the extent possible, with information that allows both sides to understand the price paid for each of the different advertising services provided as part of the relevant advertising value chain. Such information sharing should include necessary safeguards in order to protect users’ fundamental rights as enshrined in the EU Charter of Fundamental rights and enable users to make use of their rights as data subjects.
Amendment 79 #
Proposal for a regulation
Recital 43
Recital 43
(43) A gatekeeper may in certain circumstances have a dual role as a provider of core platform services whereby it provides a core platform service to its business users, while also competing with those same business users in the provision of the same or similar services or products to the same end users. In these circumstances, a gatekeeper may take advantage of its dual role to use data, generated from transactions by its business users on the core platform, for the purpose of its own services that offer similar services to that of its business users. This may be the case, for instance, where a gatekeeper provides an online marketplace or app store to business users, and at the same time offer services as an online retailer or provider of application software against those business users. To prevent gatekeepers from unfairly benefitting from their dual role, it should be ensured that they refrain from using any aggregated or non-aggregated data, which may include anonymised and personal data that is not publicly availableexclusively in domain of core platform providers to offer similar services to those of their business users. This obligation should apply to the gatekeeper as a whole, including but not limited to its business unit that competes with the business users of a core platform service.
Amendment 80 #
Proposal for a regulation
Recital 46
Recital 46
(46) A gatekeeper may use different means to favour its own services or products on its core platform service, to the detriment of the same or similar services that end users could obtain through third parties. This may for instance be the case where certain software applications or services are pre-installed by a gatekeeper. To enable end user choice, gatekeepers should not prevent end users from un- installing any pre-installed software applications on its core platform service and thereby favour their own software applications, and should offer end users the opportunity to choose the software applications on its core platforms including an option to settings without any pre-installed software that is not required for the basic functionality of their platform.
Amendment 82 #
(47) The rules that the gatekeepers set for the distribution of software applications may in certain circumstances restrict the ability of end users to install and effectively use third party software applications or software application stores on operating systems or hardware of the relevant gatekeeper and restrict the ability of end users to access these software applications or software application stores outside the core platform services of that gatekeeper. Such restrictions may limit the ability of developers of software applications to use alternative distribution channels and the ability of end users to choose for different reasons between different software applications to run on platforms from different distribution channels and should be prohibited as unfair and liable to weaken the contestability of core platform services. In order to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper the gatekeeper concerned may implement proportionate technical or contractual measures to achieve that goal if the gatekeeper demonstrates that such measures are necessary and justified and that there are no less restrictive means to safeguard the integrity of the hardware or operating system.
Amendment 87 #
Proposal for a regulation
Recital 49
Recital 49
(49) In such situations, the gatekeeper should not engage in any form of differentiated or preferential treatment in ranking, display, or making embedded results on the core platform service, whether through legal, commercial or technical means, in favour of products or services it offers itself or through a business user which it controls. The gatekeeper should refrain from imposing mechanisms or conditions that make the gathering and the combination of relevant data from end users or the obtaining of consent for the use of such data by a business user for the purpose of serving interest-based advertising within a core platform service more burdensome or difficult where the business user complies with all statutory requirements for such advertising, in particular under Regulation(EU) 2016/679. Provide for entire disclosure and transparency of the parameters and data used for decision making, execution and measurement of the performance measuring tools, in particular with regard to ad inventory and services owned by the gatekeeper in relation to ad inventory and intermediation services owned by other publishers or service providers connected with the gatekeeper´s platform; To ensure that this obligation is effective, it should also be ensured that the conditions that apply to such ranking are also generally, display or embedded results are fair. Ranking should in this context cover all forms of relative prominence, including display, rating, linking or voice results. To ensure that this obligation is effective and cannot be circumvented it should also apply to any measure that may have an equivalent effect to the differentiated or preferential treatment in ranking. The guidelines adopted pursuant to Article 5 of Regulation (EU) 2019/1150 should also facilitate the implementation and enforcement of this obligation.34 _________________ 34Commission Notice: Guidelines on ranking transparency pursuant to Regulation (EU) 2019/1150 of the European Parliament and of the Council (OJ C 424, 8.12.2020, p. 1).
Amendment 90 #
Proposal for a regulation
Recital 50
Recital 50
(50) Gatekeepers should not restrict or prevent the free choice of end users by technically preventing switching between, installment, effective use or subscription to different, including third party software applications and services. This would allow more providers to offer their services, thereby ultimately providing greater choice to the end user. Gatekeepers should ensure a free choice irrespective of whether they are the manufacturer of any hardware by means of which such software applications or services are accessed and shall not raise artificial technical barriers so as to make switching, installing or using impossible or ineffective. The mere offering of a given product or service to consumers, including by means of pre-installation, as well as the improvement of the offering to end users, such as price reductions or increased quality, should not be construed as constituting a prohibited barrier to switching.
Amendment 91 #
Proposal for a regulation
Recital 51
Recital 51
(51) Gatekeepers can hamper the ability of end users to access online content and services including software applications. Therefore, rules should be established to ensure that the rights of end users to access an open internet are not compromised by the conduct of gatekeepers. Gatekeepers can also technically limit the ability of end users to effectively switch between different Internet access service providers, in particular through their control over operating systems or hardware. This distorts the level playing field for Internet access services and ultimately harms end users. It should therefore be ensured that gatekeepers do not unduly restrict end users in choosing their Internet access service provider or discriminate against using additional software by the end users, such as, for example, establishing virtual private network to hide or change their Internet Protocol.
Amendment 93 #
Proposal for a regulation
Recital 53
Recital 53
(53) The conditions under which gatekeepers provide online advertising services to business users including both advertisers and publishers are often non- transparent and opaque. This often leads to a lack of information for advertisers and publishers about the effect of a given ad. To further enhance fairness, transparency and contestability of online advertising services designated under this Regulation as well as those that are fully integrated with other core platform services of the same provider, the designated gatekeepers should therefore provide advertisers and publishers, when requested, with free of charge access to the performance measuring tools of the gatekeeper and the information necessary, including criteria used by the ad-tech platform services such as pricing mechanisms, advertising auctions and their weighting, and fees charged by ad exchanges, for advertisers, advertising agencies acting on behalf of a company placing advertising, as well as for publishers to carry out their own independent verification of the provision of the relevant online advertising services.
Amendment 99 #
Proposal for a regulation
Recital 56
Recital 56
(56) The value of online search engines to their respective business users and end users increases as the total number of such users increases. Providers of online search engines collect and store aggregated datasets containing information about what users searched for, and how they interacted with, the results that they were served. Providers of online search engine services collect these data from searches undertaken on their own online search engine service and, where applicable, searches undertaken on the platforms of their downstream commercial partners. Access by gatekeepers to such ranking, query, click and view data constitutes an important barrier to entry and expansion, which undermines the contestability of online search engine services. Gatekeepers should therefore be obliged to provide access, on fair, reasonable and non-discriminatory terms, to these ranking, query, click and view data in relation to free and paid search generated by consumers on online search engine services to other providers of such services, so that these third-party providers can optimise their services and contest the relevant core platform services. Such access should also be given to third parties contracted by a search engine provider, who are acting as processors of this data for that search engine. When providing access to its search data, a gatekeeper should ensure the protection of the personal data of end users by appropriate means, without substantially degrading the quality or usefulness of the data. The gatekeeper should be able to demonstrate that anonymised query, click and view data have been adequately tested against possible re-identification risks.
Amendment 102 #
Proposal for a regulation
Recital 60
Recital 60
(60) In exceptional circumstances justified on the limited grounds of public morapolitcy, public health or public security, the Commission should be able to decide that the obligation concerned does not apply to a specific core platform service. Affecting these public interests can indicate that the cost to society as a whole of enforcing a certain obligation would in a certain exceptional case be too high and thus disproportionate. The regulatory dialogue to facilitate compliance with limited suspension and exemption possibilities should ensure the proportionality of the obligations in this Regulation without undermining the intended ex ante effects on fairness and contestability.
Amendment 104 #
Proposal for a regulation
Recital 61
Recital 61
(61) The data protection and privacy interests of end users are relevant to any assessment of potential negative effects of the observed practice of gatekeepers to collect and accumulate large amounts of data from end users. Ensuring an adequate level of transparency of profiling practices employed by gatekeepers facilitates contestability of core platform services, by putting external pressure on gatekeepers to prevent making deep consumer profiling, tracking or accumulation of personal data from third parties the industry standard, given that potential entrants or start-up providers cannot access data to the same extent and depth, and at a similar scale. Enhanced transparency should allow other providers of core platform services to differentiate themselves better through the use of superior privacy guaranteeing facilities. To ensure a minimum level of effectiveness of this transparency obligation, gatekeepers should at least provide a descriptioncomprehensive report of the basis upon which profiling, tracking and the use of data from third parties is performed, including whether personal data and data derived from user activity is relied on, the processing applied, the purpose for which the profile is prepared and eventually used, the impact of such profiling on the gatekeeper’s services and users’ privacy, and the steps taken to enable end users to be aware of the relevant use of such profiling, as well as to seek their consent.
Amendment 116 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point f a (new)
Article 2 – paragraph 1 – point 2 – point f a (new)
(f a) web browsers;
Amendment 117 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g a (new)
Article 2 – paragraph 1 – point 2 – point g a (new)
(g a) profiling;
Amendment 118 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g b (new)
Article 2 – paragraph 1 – point 2 – point g b (new)
(g b) consent;
Amendment 119 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 – point g c (new)
Article 2 – paragraph 1 – point 2 – point g c (new)
(g c) active end user;
Amendment 125 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10 a) ‘Web browser’ means a type of software application that permits the retrieval and presentation of information, mediates what occurs between the end- user and the website and enables a user to navigate in the World Wide Web to access and display data or to interact with content hosted on servers that are connected to this network;
Amendment 131 #
Proposal for a regulation
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) ‘Ranking’ means the relative prominence given to goods or services offered through online intermediation services, video sharing platforms, search engines, web browsers or online social networking services, or the relevance given to search results by online search engines, as presented, organised or communicated by the providers of online intermediation services or of online social networking services or by providers of online search engines, respectively, whatever the technological means used for such presentation, organisation or communication;
Amendment 132 #
Proposal for a regulation
Article 2 – paragraph 1 – point 21 a (new)
Article 2 – paragraph 1 – point 21 a (new)
(21 a) ‘Profiling’ means any form of automated processing of personal data as defined in point 4 of Article 4 of Regulation (EU) 2016/697;
Amendment 133 #
Proposal for a regulation
Article 2 – paragraph 1 – point 21 b (new)
Article 2 – paragraph 1 – point 21 b (new)
(21 b) 'Consent' of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;
Amendment 134 #
Proposal for a regulation
Article 2 – paragraph 1 – point 21 c (new)
Article 2 – paragraph 1 – point 21 c (new)
(21 c) ‘Active end user’ means any natural or legal person using core platform services, and having saved personal data on the platform in the form of a profile of that user or in similar for, on a long-term basis;
Amendment 143 #
Proposal for a regulation
Article 3 – paragraph 6 – subparagraph 1 – point e a (new)
Article 3 – paragraph 6 – subparagraph 1 – point e a (new)
(e a) access to receive public information, dissemination to the public, notably as concerns the modalities of the transmission of the relevant information;
Amendment 149 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) refrain from combining and accumulating of personal data sourced from these core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services, and from signing in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and provided consentand accumulate personal data, and present to the end user, including by offering a less personalised or non-personalised alternative in an explicit, user-friendly, clear and straight forward manner with the specific choice to opt-in to such practices and provide a user friendly consent management to the end user in the sense of Regulation (EU) 2016/679. ;
Amendment 166 #
Proposal for a regulation
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) refrain from using, in competition with business users, any data not publicly availableexclusively in domain of core platform provider, which is generated through activities by those business users, including by the end users of these business users, of its core platform services or provided by those business users of its core platform services or by the end users of these business users;
Amendment 168 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) allow end users to un-install any pre-installed software applications and provide users an option to change to a default see tings in regards and without any pre-installed software on anon- discriminatory basis on its core platform service without prejudice to the possibility for a gatekeeper to restrict such un- installation or pre-installment of software in relation to software applications that are essential for the functioning of the operating system or of the device and which cannot technically be offered on a standalone basis by third- parties;
Amendment 169 #
Proposal for a regulation
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) allow the installation and effective use of third party software applications or software application stores using, or interoperating with, operating systems of that gatekeeper and allow these software applications or software application stores to be accessed by means other than the core platform services of that gatekeeper, and the ability of end users to choose between different software applications from different distribution channels . The gatekeeper shall not be prevented from taking proportionate measures to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper;
Amendment 172 #
Proposal for a regulation
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) refrain from user profiling and using exclusive data for treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non-discriminatory conditions to such ranking; refrain from favouring it’s additional services or products offered by the gatekeeper or by an third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non- discriminatory conditions to such offerings, and avoid the use of behavioural techniques and interface design with lack of transparency, inadequate information and lack of valid consent mechanisms in its ads personalisation tool;
Amendment 177 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) refrain from technically restricting the ability of end users to install, effectively use, switch between and subscribe to different software applications and services from third parties to be accessed using the operating system of the gatekeeper, including as regards the choice of Internet access provider for end users;
Amendment 183 #
Proposal for a regulation
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) provide effective portability of data generated through the activity of a business user or end user and shall, in particular, provide user-friendly tools for end users to facilitate the exercise of data portability, including personal data generated by his or her activity, in line with Regulation EU 2016/679, including by the provision of continuous and real-time access ;
Amendment 185 #
Proposal for a regulation
Article 6 – paragraph 1 – point i
Article 6 – paragraph 1 – point i
(i) provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated or non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users; for personal data, provide access and use only where directly connected with the use effectuated by the end user in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end user opts in to such sharing with a consent in the sense of the Regulation (EU) 2016/679; , presented in an explicit, user-friendly, clear and straightforward manner in the sense of the Regulation (EU) 2016/679; shall ensure that the functionalities forgiving information and offering of the opportunity to grant consent are as user- friendly as possible;
Amendment 187 #
Proposal for a regulation
Article 6 – paragraph 1 – point j
Article 6 – paragraph 1 – point j
(j) provide to any third party providers of online search engines, upon their request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on online search engines of the gatekeeper, subject to effective anonymisation for the query, click and view data that constitutes personal datawith every reasonable means and techniques available to prevent re-identification for the query, click and view data that constitutes personal data and the steps taken to enable end users to be aware of the relevant use of personal data, as well as to seek their consent;
Amendment 193 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. For the purposes of point (a) of paragraph 1 data that is not publicly availableexclusively in domain of core platform provider shall include any aggregated and non-aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers on the core platform service of the gatekeeper.
Amendment 195 #
Proposal for a regulation
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
(a) public morapolitcy;
Amendment 197 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where consent for collecting and processing of personal data is required to ensure compliance with this Regulation, a gatekeeper shall take the necessary steps to either enable business users to directly obtain the required consent to their processing, where required under Regulation (EU) 2016/679 and Directive 2002/58/EC, or toand comply with Union data protection and privacy rules and principles in other ways including by providing business users with duly effectively anonymised data where appropriateith every reasonable means and techniques available to prevent re-identification. The gatekeeper shall not make the obtaining of this consent by the business user more burdensome than for its own services.
Amendment 198 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
3. A gatekeeper shall not degrade the conditions or quality of any of the core platform services provided to business users or end users who avail themselves of the rights or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult.and possibilities including consent of combining end user data or signing in users with offering a less personalised and non-personalised alternatives or choices laid down in Articles 5 and 6, or make the exercise of those rights or choices unduly difficult and avoid the use of behavioural techniques and interface design with lack of transparency, inadequate information and lack of valid consent to ads personalisation or consumer profiling;