If you’ve considered leaving WhatsApp, but felt your hands were tied because all the people you know use it, the Digital Markets Act could well be what you were hoping for. It could be a real game-changer for consumers.
The European Commission presented the Digital Markets Act (DMA) as a flagship proposal to tackle specific practices by gatekeeper platforms that control digital markets, sometimes unfairly. The aim was to develop more contestable and fair digital markets in which consumers would benefit from “more and better services to choose from” and “more opportunities to switch their provider if they wish so”.
The ball is now in the court of the European Parliament and the Council. They are both advancing fast in order to enter into negotiations in so-called “trilogues” early next year.
EU Member States are set to adopt their position on the 10th of November. And, while they are on the right path to make the Digital Markets Act work for consumers, there are two significant flaws with what they seem to have in mind:
- There is nothing in their text to create genuine consumer choice in instant messaging and social network services and,
- consumers can’t enforce their rights under the DMA.
Consumers want interoperable instant messaging and social networks
Unfortunately, the Council text would do very little to open up the markets of social media and instant messaging services to competition from new entrants.
A pre-condition to make these markets competitive, and to allow consumers to use the social network or messaging service of their choice, is that gatekeepers must be required to allow different platforms to talk to their services.
Today for example, WhatsApp users cannot message their friends and family that use Telegram or Signal.
Moreover, many consumers who dislike WhatsApp’s data practices have no choice but to use their services because most of their contacts are there. Without interoperability measures in the DMA, it is difficult to see how the status quo will change.
If the DMA is to fulfil its aim of allowing more companies to challenge the big platforms on these markets and to offer their services, then it is essential that the DMA imposes interoperability obligations for these two crucial consumer services.
Enforcing the DMA to consumers’ benefit
Secondly, the Council text does not allow affected companies or interest groups, like consumer and other civil society organisations, or business users, to participate in enforcement proceedings before the European Commission.
If a gatekeeper fails to comply with its obligations under the DMA, for example when it combines consumer data from two different services it provides without genuine consumer consent or finds ways to effectively block consumers from installing rivals’ apps, consumer organisations (and business users) should be entitled to have a say in the enforcement of the DMA’s obligations in order to ensure the rules are effectively applied.
Another important flaw in the Council text is that it does not allow consumer organisations to enforce the DMA before national courts. As watchdogs, consumer organisations can play a key role in the enforcement of the DMA and so contribute to the work of the European Commission. This is why we want the Council to include the DMA in the annex of the Representative Actions Directive, which would give civil society organisations the right to bring cases before national courts in case of infringements of DMA obligations.
We are at a crucial point in negotiations on the DMA.
Decisions made today will define what our digital future is made of. It is essential that the Council ensures the Digital Markets Act becomes a blueprint for legislating in the digital age and helps get digital markets working for consumers.