Say goodbye to the notion of information society services

Soon the European Commission will propose two important pieces of regulation: the Digital Services Act (DSA) and the Digital Market Act. The DSA will replace or modify the famous e-Commerce Directive, or more precisely: The Directive on ‘certain legal aspects of information society services, in particular electronic commerce, in the Internal Market’.

I remember well the days of its writing. When my team, in particular Richard Sonnenschein, in what is today DG Connect, was busy with the e-Signature Directive (predecessor of today’s eIDAS Directive) my great colleague and brilliant lawyer, Margot Fröhlinger, from the Internal Market Directorate General approached me with an early draft of the e-Commerce Directive. Margot and her team pushed this Directive through and cleared the path for the growth of the internet economy. 

Over two decades the e-Commerce Directive has not been revised because its spirit was de facto a de-regulatory approach and different rules could have hampered that. Recall: Around the year 2000, we, in the EU and the US, jointly, considered the nascent electronic commerce and the early internet as too vulnerable to be smothered by over-regulation.

Times of change. A revision is now overdue, but this is not the purpose of this post. I want to pick on the peculiar notion of information society services, which the DSA will most likely change into ‘digital services’. It will also introduce a definition of services that did not exist 20 years ago.

First, the e-Commerce Directive was not the first legal text to introduce the term of information society services but a Directive on the transparency of national rules, standards and regulations in the domain of information and communication technologies. What is more important though is the thinking behind it.

The background was the vision of a politician, namely the responsible Commissioner for industry and telecommunication, Martin Bangemann, a former German minister of economic affairs. If you will, he was the Thierry Breton of that time. Martin Bangemann set the objective to liberalise Europe’s telecommunication sector, which happened in 1998. From the start, his position was that technology and market forces will have a major impact on the society. Side remark: I always feel puzzled when I read documents of these days about the ‘revolution of digital technologies and its profound impact on society’ as it was a recent revelation. I really would like to invite the current generation of officials to think beyond this platitude. There is no need to repeat the obvious. Just move on, also on the narrative.

Coming back to the information society. We introduced and promoted this concept, speaking to Trade Unions, opening up dialogues with privacy advocates, and of course writing papers. Just one example: We concluded that strong encryption to preserve privacy should not be regulated or prevented, but promoted. Does it ring a bell? We published several action plans of the European way to the information society. Eventually this term entered a couple of legislations, which was a good example of technocrats following political leadership. It is fair to say that the US did not adopt our societal approach but stuck to their mantra of ‘it is all industry driven’.
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Very quickly, the focus points moved to the internet, ‘internet for all’, broadband, 3G, etc. until today’s pet topics of AI, 5G, Cloud, etc. Information Society as a paradigm was no longer ‘en vogue’ , but it survived in some legal texts—up to today. Now it is time to say goodbye to this narrative and maybe an incentive to reflect on what we have learned over the last 20 to 25 years. More on this in future posts.