Potholes Ahead – the EU’s Plans for Reform in 2018

2018 is likely to be a bumper year for fans of EU regulatory change in the technology and digital sectors.

The EU has published its annual “Work Programme” which sets out a challenging agenda of legislative and regulatory change for the technology, media and telecoms (TMT) sectors, to be delivered in conjunction with the on-going implementation of the Digital Single Market (DSM) strategy.

Key EU initiatives for 2018 include completion of legislative proposals on the Electronic Communications Code; copyright and intellectual property reform; the Digital Content Directive; e-privacy; cross-border parcel delivery services; the use of non-personal data; and prevention of unjustified geoblocking.

And, of course, the General Data Protection Regulation (GDPR) comes into effect in May 2018, so companies with EU operations should already have plans to take that into account.

2018 EU Work Programme

The EU’s DSM initiative was launched in 2015 and is well past the halfway point (in terms of time elapsed, but not in terms of progress achieved). With the Commission still waiting for a number of its proposals to be delivered, 2018 will be a key year in the life of the DSM, with the potential for a number of developments as the EU looks to push ahead with its strategy.

The European Commission publishes its annual Work Programme each year to set out what it plans to achieve in terms of specific implementation of its key initiatives. This provides a helpful guide that explains what to expect in terms of new laws and regulations. However, the question of when to expect any given regulatory change is harder to answer in the light of the notorious delays endemic to the EU legislative process).

For the TMT sectors, further progress in the creation of the EU’s DSM dominates the regulatory agenda and the Commission’s Work Programme.

And, despite Brexit, the UK is not immune. While timing is everything and Brexit may impact the UK’s adoption of some of these initiatives which will not reach fruition until later in 2019, businesses have to assume that the UK is likely to inherit or adopt most or all of what the Commission plans for the TMT sectors.

In terms of key issues for 2018, the Commission has targeted completion of legislative proposals on:

• the Electronic Communications Code – a code which lays out the regulatory framework for electronic communications online;
• copyright reform– in particular the proposed directive on copyright reform in the DSM;
• the Digital Content Directive – a proposed directive which aims to regulate contracts for the supply of digital content;
• unjustified geo-blocking – the regulation allowing cross-border portability of content goes live on 1 April 2018;
• cross-border parcel delivery services; and
• e-privacy.

It plans to prioritise these areas, setting out a number of specific regulations and directives on which the EU Parliament and Council should focus their attention.

On a long-term and general note, the Commission also stresses the importance of:

• achieving very high speed fixed and mobile networks (5G) and increased coordinated availability of spectrum – the radio frequencies allocated to the mobile industry and other sectors for communication – by 2020; and
• making the most of opportunities presented by new technologies such as high performance computing, autonomous cars, and artificial intelligence.

Outside the specifically digital sphere, the Commission also plans “A New Deal for Consumers” – that is, a targeted revision of the EU consumer directives on unfair terms in consumer contracts and unfair business-to-consumer commercial practices, with the aim of providing better protection of consumer rights.

Cybersecurity

The Commission believes that cybersecurity and the confidence of European citizens will play a key role in ensuring the DSM is a success. It intends to respond to the rise in cyber-attacks and new varied threats faced by European citizens online by completing the package of proposals that it started in September 2017, and setting up a network of cybersecurity competence centres.

New Proposals

With the digital space constantly evolving and creating new challenges, notably with the rise in awareness of “fake news” in 2017, the Commission has outlined three new proposals:

• a proposal on fairness in platform-to-business relations (scheduled for publication in Q1, 2018);
• an initiative addressing online platform challenges regarding the spreading of fake information (scheduled for Q1, 2018); and
• a revision of the Commission’s guidelines on market analysis and assessment of significant market power in the electronic communications sector (scheduled for Q2, 2018).

Since the launch of its DSM strategy in 2015, not many of the Commission’s legislative proposals have actually been implemented, an indication of how lengthy and complex the EU law-making process can be. The Commission’s Work Programme is intended to accelerate the process in 2018 but that depends on the rest of the EU cooperating and on the Commission itself getting better and setting out its new proposals in more detail, and finalising its proposals in areas such as cybersecurity and data protection.

Alistair Maughan is a partner and head of the European Technology Group at Morrison & Foerster, an international law firm. Follow him on twitter at https://twitter.com/ICToutsourcelaw