Europe continued to forge ahead in 2023 in regulating digital platforms with the passage of the landmark Digital Markets and Digital Services Acts. Congress and tech companies have been highly attuned to European policy developments in the past year―and so have our experts on the ground.

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In the final post in a series on 2024 tech policy predictions, Senior Advisor Colin Bortner highlights major developments across the Atlantic and outlines his predictions for the future of tech policy in the European Union and beyond.

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Colin Bortner is a senior advisor with Glen Echo Group, where he helps clients navigate issues in the technology, media, and telecommunications space and engage in the US, EU, and globally. Previously, Colin led public policy and government affairs for Netflix in Europe, the Middle East, and Africa (EMEA), based out of the company's headquarters in Amsterdam.

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What were the most significant developments in tech policy in the European Union in 2023, and why?

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Without a doubt, the explosion of generative artificial intelligence (AI) technology and services has been the single most important development in tech policy in 2023. For policy practitioners, it’s a bit like all the major internet policy debates are reemerging in the context of AI.

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For example, the question of liability for content generated by large language models (LLMs) and other generative AI tools has striking parallels to intermediary liability questions which, in the context of online services, are currently embodied in the E-Commerce Directive in the EU and Section 230 of the Communications Act in the US. The Digital Services Act (DSA) in the EU is also very relevant for understanding and anticipating future policy flashpoints with generative AI systems, including liability, but also transparency.

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Similarly, the rights of artists and authors come into question with respect to training and monetizing AI models. Are artists and authors owed anything for the texts, images and other media that are used to train AI models? Can the output of those models infringe their rights? In different ways, these questions parallel the copyright and piracy debates that enveloped the early stages of the growth of digital services and led to revisions of the Copyright Directive in the EU, among other developments, and the Digital Millennium Copyright Act in the US. It’s also interesting to consider how the rise in digital services, and remuneration from them, have driven labor disputes between studios and publishers and artists and authors, and how that will continue with the expanded adoption and use of AI in the creative sector.

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The first real points of friction between EU Member States and generative AI systems are around privacy and data protection―notably Europe’s General Data Protection Regulation (GDPR). It’s a relatively mature body of law and regulations, even if its boundaries are still being tested in court. And the issues around using personal information to develop algorithms and personalizing products and services become new and interesting when it comes to generative AI models.

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There are a number of other policy issues that feel very familiar to veterans in the digital space, including in competition and antitrust, platform labor markets, online safety and national security. Altogether, these make up a very full policymaking agenda for the next several years.

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What issues in particular are receiving the most attention in the EU?

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In truth, all of the tech policy issues in the US―AI, cyber, broadband, content moderation, privacy, encryption and more―are being taken up by European lawmakers. For example:

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• ‍AI: The EU is closing in on the AI Act, which is one of the first major pieces of AI regulation. Though it was not drafted with the kinds of general-purpose AI systems that have recently risen to prominence, like large language models (LLMs), in December the co-legislators reached a political agreement on a path forward to include them within the framework of the proposal.

• Competition: The Digital Markets Act (DMA) is being implemented for large digital platforms operating in Europe, which―as an ex-ante regulation―will substantially shape the commercial market, and will also impact national competition regulators’ enforcement agenda.

• Broadband: The “network fee” debate was the biggest broadband related issue in 2023, which ended with the Commission's capitulation and abandoning the project to force online services to pay ISPs. Subsequently, Commissioner Breton proposed the Digital Networks Act (DNA), which would boost the EU telecoms sector and in part make up for the “loss” of the network fee debate. In parallel, the Gigabit Infrastructure Act, which aims to lower costs and encourage the deployment of high-speed networks, is entering the final stages of agreement.‍

• Content moderation: Along with the DMA, the EU is currently focused on the implementation of the Digital Services Act (DSA), which among other things sets standards for content moderation by online platforms. The Commission’s pending proposal aimed at child sexual abuse material (CSAM), the CSA regulation, and political advertising regulation, also intersect with content moderation questions‍

• Privacy: The EU and Member States continue to develop case law around the GDPR. At the same time, the proposed successor to the ePrivacy Directive, the ePrivacy Regulation, continues to stall between the co-legislators, and the clock ticks on a temporary ePrivacy derogation that forms the basis for the Commission’s current voluntary efforts to combat CSAM.

• ‍Encryption: The focus of the encryption debate in the EU is the proposed CSA regulation, which is intended to address child sexual abuse material online. A key sticking point between the co-legislators (as well as activists and industry) is the inclusion of end-to-end encrypted services and requiring client-side scanning of messages and content on encrypted services.

• ‍Cyber: Proposed late in 2022, the Cyber Resilience Act aims to establish cybersecurity standards for software and devices sold in the EU. It is one of the few proposals that explicitly aims to improve the security of software and network systems for citizens in the EU, whereas the potential security consequences of other initiatives, including the CSA regulation and DMA, have received criticism.

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What do we expect to see out of the EU as far as tech policy in 2024? What do you think is the most likely to pass, and what do you expect to see stall?

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The European elections in 2024 will be the biggest story of the year, and the EU institutions are in crunch time right now to finish up a number of files.

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One of the most remarkable recent developments is the Commission’s apparent capitulation on network fees after its consultation on the issue. It does not appear that we should expect to see a network fees proposal this mandate or next mandate. Other notable files that may be pushed to next mandate include the child sexual abuse regulation and political advertising regulation.

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Beyond that, one of the biggest questions is whether Ursula von der Leyen, the Commission President, can secure a second term. Conventional wisdom right now is that Thierry Breton, the French commissioner who oversees digital policy, is her natural challenger.

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However the EU elections and for the contest for the Commission President turn out, it’s safe to assume that in addition to the files that are held over from this current mandate, we will see proposals on generative AI issues, including copyright, and I anticipate ePrivacy Regulation may be taken up. Other things to keep an eye on are: the Digital Networks Act, which is taking shape as a proposal to placate the incumbent telecoms in the fallout of the network fees consultation; the EU mobility “data space”; and EU supercomputer investments for AI.

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Finally, it’s still likely that the most impactful digital policy developments in 2024 will all flow from the enforcement of GDPR and the implementation of DMA and DSA.

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Just as the internet doesn’t recognize international borders, internet policy will reach far beyond its country of origin. With many of the world’s leading tech companies based in the US, rules for the digital world coming out of the EU will have great impact here at home. If you have questions about European policy developments or want to be sure that your messages reach global audiences, get in touch!

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