The Commission’s interoperability non-paper

The European Commission has been contributing to the Digital Markets Act trilogues with the Parliament and Council, with non-papers on targeted advertising and interoperability. Thanks to Lobby Control, everyone (not just the EU institutions and well-connected lobbyists) can read them. It really would be much more democratic if all these documents were published by the institutions themselves.

My overall impression was the latter non-paper (not for the first time by the Commission) overstates the complexity of instant messaging and social media interoperability, as well as the impact of the other DMA measures on these two markets, which are heavily concentrated in the EU (within the same company, as it happens.)

On the policy options discussed:

(1) Leaving this issue to a later impact assessment argument is much too little, too late. There are literally thousands of pages of analysis now on digital market competition, in the UK Competition & Markets Authority 2019 online platform study; in the EU competition commissioner’s three special advisors report in 2019; in the US House of Representatives antitrust subcommittee study; and elsewhere, which ALL strongly recommend interoperability.

(2) does not go far enough and would be very unlikely to “un-tip” the strongly tipped messaging and social media markets. It would still give a gatekeeper with a very large number of users a very strong advantage over its competitors — the central element of network effects the DMA is supposed to tackle. And multi-homing as a solution does not give European users the option of deleting accounts with providers such as Facebook who are abusing consent/contract to invade their privacy or other fundamental rights.

(3a) These “basic features” in the Commission’s view sound like SMS. Why waste anyone’s time with this? A much richer range of services can now be said to be industry-standard — see the UK CMA study table 3.1 cited above.

(3b) would be preferable (and without involving the European standards bodies, which would pointlessly add years to the process. There are/will be existing standards from private sector-led standards bodies such as the IETF and W3C which can be specified. The Standardisation Regulation already includes tests of openness, consensus, etc. which can be referred to.) But:
* I don’t think it is relevant to talk about “all providers” being subject to an obligation. No need for “regular” updating except for urgent issues such as security and privacy flaws; feature development could be on a slower timeframe. 
* The resources for supporting such a standard (“adaptations”) would be trivial for gatekeeper-scale companies; it would be entirely optional for smaller providers to adopt them. There are non-legislative mechanisms the Commission could use to ease these further, such as financially supporting the development of open source libraries supporting the standard.
* While there would be less (not no) scope for differentiation/innovation around features in the standard, there would be plenty of scope for innovation around new features (and isn’t that what society would like to encourage?) eg VR chat via Oculus headsets on WhatsApp.
* Exchange of contact and metadata would only take place relating to users of competing services who had chosen to communicate with “friends” on gatekeeper services; and the use of it would be limited by GDPR minimisation/purpose limitation etc.
* “Risk of proliferation of illegal and/or harmful content” essentially says the Commission is happy with a situation where one or two companies almost completely control a market, because it makes it easier for the EC to control the behaviour of their users. Is this really the situation we want to be in? Would we accept it with newspapers or TV channels?

Finally, I get the feeling the Commission used an old bureaucratic trick: adding several unlikely and underpowered options at one end of their options to make the (most effective) option at the other end of the scale look ”extreme”. Overall, I think it could have done better. Let’s hope the Parliament keeps pushing for a better outcome.