Who the DMA will apply to
The DMA will apply to gatekeepers (Article 2(1)) being an undertaking which provides core platform services:
- (a) online intermediation services; (b) online search engines; (c) online social networking services; (d) video-sharing platform services; (e) number-independent interpersonal communications services; (f) operating systems; (g) web browsers; (h) virtual assistants; (i) cloud computing services; (j) online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services,
provided by an undertaking that provides any of the core platform services listed in points (a) to (i) (core platform services are any of the foregoing) (Article 2(2)) and which are designated by the European Commission under Article 3.
‘web browser’ means a software application that enables end users to access and interact with web content hosted on servers that are connected to networks such as the Internet, including standalone web browsers as well as web browsers integrated or embedded in software or similar (Article 2(11)).
‘cloud computing service’ means a cloud computing service as defined in Article 4, point (19), of Directive (EU) 2016/1148 of the European Parliament and of the Council (NIS1) (Article 2 (13)).
Advertising: the issues
The conditions under which gatekeepers provide online advertising services to business users, including both advertisers and publishers, are often opaque and less transparent especially since the GDPR came into force. Additionally modern day programmatic advertising is very complex. These issues can lead to higher costs of advertising for business users and less switching to other providers of advertising.
Additionally, business users often buy advertising services from a gatekeeper and also use the gatekeeper platform and services to sell goods and services to end users. In this case, it can happen that the data is/are not generated on the core platform service, but are provided to the core platform service by the business user or are generated based on its operations through the core platform service concerned. (Recital 45 of the DMA).
Accordingly the DMA provides:
The gatekeeper must provide each advertiser to which it supplies online advertising services, or third parties authorised by advertisers, upon the advertiser’s request, with information on a daily basis free of charge, concerning each advertisement placed by the advertiser, regarding:
- (a) the price and fees paid by that advertiser, including any deductions and surcharges, for each of the relevant online advertising services provided by the gatekeeper,
- (b) the remuneration received by the publisher, including any deductions and surcharges, subject to the publisher’s consent; and
- (c) the metrics on which each of the prices, fees and remunerations are calculated. In the event that a publisher does not consent to the sharing of information regarding the remuneration received, as referred to in point (b) of the first subparagraph, the gatekeeper shall provide each advertiser free of charge with information concerning the daily average remuneration received by that publisher, including any deductions and surcharges, for the relevant advertisements (Article 5(9)).
The gatekeeper must provide each publisher to which it supplies online advertising services, or third parties authorised by publishers, upon the publisher’s request, with free of charge information on a daily basis, concerning each advertisement displayed on the publisher’s inventory, regarding:
- (a) the remuneration received and the fees paid by that publisher,
- (b) the price paid by the advertiser, including any deductions and surcharges, subject to the advertiser’s consent; and
- (c) the metrics on which each of the prices and remunerations are calculated (Article 5(10)).
The gatekeeper must provide advertisers and publishers, as well as third parties authorised by advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the data necessary for advertisers and publishers to carry out their own independent verification of the advertisements inventory, including aggregated and non-aggregated data. Such data shall be provided in a manner that enables advertisers and publishers to run their own verification and measurement tools to assess the performance of the core platform services provided for by the gatekeepers (Article 6(8)).
The gatekeeper must provide business users and third parties authorised by a business user, at their request, free of charge, with effective, high-quality, continuous and real-time access to, and use of, aggregated and non-aggregated data, including personal data, that is provided for or generated in the context of the use of the relevant core platform services or services provided together with, or in support of, the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users. (Article 6(10)).
With regard to personal data, the gatekeeper must provide for such access to, and use of, personal data only where the data are directly connected with the use effectuated by the end users in respect of the products or services offered by the relevant business user through the relevant core platform service, and when the end users opt in to such sharing by giving their consent (Article 6(10)).
Gatekeeper Positive Obligations: Digital Markets Act
The gatekeeper must comply with all obligations set out in Article 5 and Article 6 with respect to each of its core platform services listed in the designation decision pursuant to Article 3(9) (Article 5(1) and Article 6(1)).
The gatekeeper:
- must allow business users, free of charge, to communicate and promote offers, including under different conditions, to end users acquired via its core platform service or through other channels, and to conclude contracts with those end users, regardless of whether, for that purpose, they use the core platform services of the gatekeeper (Article 5(4)).
- must allow end users to access and use, through its core platform services, content, subscriptions, features or other items, by using the software application of a business user, including where those end users acquired such items from the relevant business user without using the core platform services of the gatekeeper (Article 5(5)).
- must allow and technically enable end users to easily un-install any software applications on the operating system of the gatekeeper, without prejudice to the possibility for that gatekeeper to restrict such un-installation in relation to software applications that are essential for the functioning of the operating system or of the device and which cannot technically be offered on a standalone basis by third parties (Article 6(3)).
- must allow and technically enable end users to easily change default settings on the operating system, virtual assistant and web browser of the gatekeeper that direct or steer end users to products or services provided by the gatekeeper. That includes prompting end users, at the moment of the end users’ first use of an online search engine, virtual assistant or web browser of the gatekeeper listed in the designation decision pursuant to Article 3(9), to choose, from a list of the main available service providers, the online search engine, virtual assistant or web browser to which the operating system of the gatekeeper directs or steers users by default, and the online search engine to which the virtual assistant and the web browser of the gatekeeper directs or steers users by default. (Article 6(3)).
- must allow and technically enable the installation and effective use of third-party software applications or software application stores using, or interoperating with, its operating system and allow those software applications or software application stores to be accessed by means other than the relevant core platform services of that gatekeeper. Article 6(4)). Where applicable, must not prevent the downloaded third-party software applications or software application stores from prompting end users to decide whether they want to set that downloaded software application or software application store as their default. (Article 6(4)).
- must technically enable end users who decide to set that downloaded software application or software application store as their default to carry out that change easily. Article 6(4)). The gatekeep must not be prevented from taking, to the extent that they are strictly necessary and proportionate, measures to ensure that third-party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper. (Article 6(4)).
- must allow providers of services and providers of hardware, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same hardware and software features accessed or controlled via the operating system or virtual assistant listed in the designation decision pursuant to Article 3(9) as are available to services or hardware provided by the gatekeeper (Article 6(7)). Furthermore, the gatekeeper must not be prevented from applying, to the extent that they are strictly necessary and proportionate, measures and settings other than default settings, enabling end users to effectively protect security in relation to third-party software applications or software application stores, provided that such measures and settings other than default settings are duly justified by the gatekeeper (Article 6(4)).
- must allow business users and alternative providers of services provided together with, or in support of, core platform services, free of charge, effective interoperability with, and access for the purposes of interoperability to, the same operating system, hardware or software features, regardless of whether those features are part of the operating system, as are available to, or used by, that gatekeeper when providing such services. (Article 6(7)). The gatekeeper must not be prevented from taking strictly necessary and proportionate measures to ensure that interoperability does not compromise the integrity of the operating system, virtual assistant, hardware or software features provided by the gatekeeper, provided that such measures are duly justified by the gatekeeper (Article 6(7) also).
- must provide end users and third parties authorised by an end user, at their request and free of charge, with effective portability of data provided by the end user or generated through the activity of the end user in the context of the use of the relevant core platform service, including by providing, free of charge, tools to facilitate the effective exercise of such data portability, and including by the provision of continuous and real-time access to such data (Article 6(9)).
- must provide to any third-party undertaking, providing online search engines, at its request, with access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on its online search engines. Any such query, click and view data that constitutes personal data must be anonymised (Article 6(11)).
- must apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9). For that purpose, the gatekeeper must publish general conditions of access, including an alternative dispute settlement mechanism. The Commission shall assess whether the published general conditions of access comply with this paragraph. (Article 6(12)).
Gatekeeper Negative Obligations: Digital Markets Act
The gatekeeper must not do any of the following:
- process, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper;
- combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper or with personal data from third-party services;
- cross-use personal data from the relevant core platform service in other services provided separately by the gatekeeper, including other core platform services, and vice versa; and
- sign in end users to other services of the gatekeeper in order to combine personal data, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679 (Article 5(2)).
- prevent business users from offering the same products or services to end users through third-party online intermediation services or through their own direct online sales channel at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper (Article 5(3)).
- directly or indirectly prevent or restrict business users or end users from raising any issue of non-compliance with the relevant Union or national law by the gatekeeper with any relevant public authority, including national courts, related to any practice of the gatekeeper. This is without prejudice to the right of business users and gatekeepers to lay down in their agreements the terms of use of lawful complaints-handling mechanisms (Article 5(6)).
- require end users to use, or business users to use, to offer, or to interoperate with, an identification service, a web browser engine or a payment service, or technical services that support the provision of payment services, such as payment systems for in-app purchases, of that gatekeeper in the context of services provided by the business users using that gatekeeper’s core platform services (Article 5(7)).
- require business users or end users to subscribe to, or register with, any further core platform services listed in the designation decision pursuant to Article 3(9) or which meet the thresholds in Article 3(2), point (b), as a condition for being able to use, access, sign up for or registering with any of that gatekeeper’s core platform services listed pursuant to that Article. (Article 5(8));
- use, in competition with business users, any data that is not publicly available that is generated or provided by those business users in the context of their use of the relevant core platform services or of the services provided together with, or in support of, the relevant core platform services, including data generated or provided by the customers of those business users (Article 6(2)). Data that is not publicly available will include any aggregated and non aggregated data generated by business users that can be inferred from, or collected through, the commercial activities of business users or their customers, including click, search, view and voice data, on the relevant core platform services or on services provided together with, or in support of, the relevant core platform services of the gatekeeper (Article 6(2)).
- treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper must apply transparent, fair and non-discriminatory conditions to such ranking (Article 6(5)).
- restrict technically or otherwise the ability of end users to switch between, and subscribe to, different software applications and services that are accessed using the core platform services of the gatekeeper, including as regards the choice of Internet access services for end users (Article 6(6)).
- have general conditions for terminating the provision of a core platform service that are disproportionate. The gatekeeper must ensure that the conditions of termination can be exercised without undue difficulty (Article 6(13)).
Gatekeeper obligations on interoperability of number-independent interpersonal communications services (Article 7) Digital Markets Act
Where a gatekeeper provides number-independent interpersonal communications services that are designated it must make the basic functionalities of its number-independent interpersonal communications services interoperable with the number-independent interpersonal communications services of another provider offering or intending to offer such services in the Union, by providing the necessary technical interfaces or similar solutions that facilitate interoperability, upon request, and free of charge (Article 7(1)).
The gatekeeper must make at least the following basic functionalities referred to in Article 7(1) interoperable where the gatekeeper itself provides those functionalities to its own end users:
(a) following the listing in the designation decision pursuant to Article 3(9):
- (i) end-to-end text messaging between two individual end users;
- (ii) sharing of images, voice messages, videos and other attached files in end to end communication between two individual end users;
(b) within 2 years from the designation:
- (i) end-to-end text messaging within groups of individual end users;
- (ii) sharing of images, voice messages, videos and other attached files in end-to-end communication between a group chat and an individual end user;
(c) within 4 years from the designation:
- (i) end-to-end voice calls between two individual end users;
- (ii) end-to-end video calls between two individual end users;
- (iii) end-to-end voice calls between a group chat and an individual end user;
- (iv) end-to-end video calls between a group chat and an individual end user (Article 7(2)).
The level of security, including the end-to-end encryption, where applicable, that the gatekeeper provides to its own end users must be preserved across the interoperable services (Article 7(3)).
The gatekeeper must publish a reference offer laying down the technical details and general terms and conditions of interoperability with its number-independent interpersonal communications services, including the necessary details on the level of security and end-to-end encryption. The gatekeeper shall publish that reference offer within the period laid down in Article 3(10) and update it where necessary (Article 7(4)).
Following the publication of the reference offer pursuant to Article 7(4), any provider of number-independent interpersonal communications services offering or intending to offer such services in the Union may request interoperability with the number-independent interpersonal communications services provided by the gatekeeper. Such a request may cover some or all of the basic functionalities listed in Article 7(2). The gatekeeper must comply with any reasonable request for interoperability within 3 months after receiving that request by rendering the requested basic functionalities operational (Article 7(5)).
Copyright © Paul Foley January 2023 - All Rights Reserved.
Owner, Paul Foley Law
For legal advice on and compliance with the Platforms Regulation, the Ranking Guidelines, the DSA, DMA and the EU Artificial Intelligence Act, please use the Contact page or Email: paul@paulfoleylaw.ie
