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Digital Markets Act
Device Neutrality is the policy concept to regulate monopoly over
devices and re-establish end-user control over their digital equipment.
The Digital Markets Act (DMA) regulates the economic activity of large
digital platforms and introduces Device Neutrality into EU
legislation, fostering access to Free Software in devices.
The monopolistic power of large tech corporations causes distortions in
digital markets. This negatively affects end-users’ rights and control over
devices. Users' freedoms relating to Free Software depend on a political
and economic environment in which they can exercise their free choice
when using their devices without being stuck in closed environments under
control of gatekeepers.
Device Neutrality is
a policy concept aimed to deal with unbalanced power over digital devices.
Free Software has a central role to re-establish fair competition
and market dynamics that are more favourable to end-users. In this page we
will learn how digital markets can benefit from strict rules for
regulating the economic activity of companies with such power. The Digital Markets
Act (DMA) is an example of such regulation. With proper enforcement, the law has
the potential to facilitate access to Free Software in devices.
Device Neutrality translates in the DMA as stricter consent rules for
pre-installed apps, safeguards against vendor lock-in, and data interoperability.
Such regulatory elements represent powerful mechanisms to safeguard better
access and usage of Free Sofware in devices by end-users. Nevertheless, the enforcement
of these rules holds challenges for the practical implementation of Device Neutrality principles, and
ultimate attainment of Device Neutrality.
Digital Markets Act: an overview
The Digital
Markets Act (DMA) - Regulation (EU) 2022/1925 - regulates the
economic activity of large digital platforms that act as "gatekeepers" in
an attempt to create a fairer and more competitive market for online
platforms in the EU. The DMA is an important advance, setting up
several anti-monopoly obligations that impact software freedom,
interoperability, and control over personal data. The three principal
elements of the DMA are the designation of gatekeepers, the list of
dos and don'ts, and the enforcement mechanisms.
Who are the gatekeepers
The scope of the DMA does not cover all digital services in the markets,
but only those qualifying as "core platform services" (CPSs) listed in
Art. 2(2). These include online intermediation services, search engines,
social networks, video sharing platforms, messaging apps, operating
systems, web browsers, virtual assistants, cloud computing services, and
online advertising.
The DMA constitutes asymmetric regulation. Its obligations do not apply to
all tech companies, but only to those providers which have been designated
as gatekeepers. Such designation is done by the European
Commission based on a cumulative "three criteria test" listed in Art.3(1):
Gatekeepers are those companies with "significant impact on the EU
internal market", which "control an important gateway for business users
to reach end-users", and enjoy an "entrenched and durable position in the
market". The DMA presumes the criteria are met when the company is extremely
large with an average market capitalisation of ≥ EUR 75 billion and more than
45 million monthly active end-users.
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Device Neutrality rules in the DMA
DMA is an economic regulatory tool, not consumer protection legislation.
But many of its rules directly and indirectly affect end-users. The DMA
seeks to balance the power of gatekeepers in digital markets by protecting
end-users from monopolistic practices and promoting fair competition
among market players. For Device Neutrality, this means that
end-users should be able to bypass gatekeepers and have the right to access
alternative routes to the markets, so they can enjoy products and services
not dominated by gatekeepers (e.g. installing Free Software on their devices).
In other words, gatekeepers should not restrict business and individual end-users from
accessing rival routes to market for content, software, and other
digital services.
The DMA presents a list of "hard" and "soft" obligations for each of
the gatekeeper’s core platform services that are designated by the
Commission in Arts. 5-7, coupled with corrective mechanisms
in Arts. 8-13. These include
several provisions related to Device Neutrality.
In relation to software freedom, gatekeepers
are required to allow end-users to uninstall any pre-installed
software in devices (Art. 6(3)), as well as to enable the installation
and use of third-party apps or apps stores on devices (Art. 6 (4)).
The DMA includes several provisions to enhance the protection
against vendor lock-in. Gatekeepers cannot prohibit app developers
to set different prices and conditions for their apps in alternative stores
(e.g. F-Droid) (Art. 5(3)). Gatekeepers cannot make software developers
and end-users register or sign in for a service or app as a condition for access to
their or another gatekeeper's service or app (Art. 5(7)). Besides,
they should allow end-users to access and use third-party apps, content,
subscriptions, features, or other functionalities (Art. 5(5)). Finally,
Gatekeepers cannot restrict the ability of end-users to switch between and
subscribe to different apps and services that are accessed via the operating system
or apps store (Art. 6(6)).
Interoperability and control over data is also contemplated
as an important factor against lock-in. Gatekeepers should provide the same
hardware and software features accessed or controlled via the operating system
to third-party developers (Art. 6(7). This includes data interoperability
(also called real-time data portability (Art. 6(9) and
interoperability among messaging apps (Art. 7).
Enforcement mechanisms
The DMA represents a new attitude towards platform regulation. It is a
hybrid form of competition and telecommunications law, whereby a
designated authority identifies who will fall under the scope of
the regulation. However, unlike telecom law, which requires action by national
regulatory authorities, enforcement is centralized in the European
Commission. The Commission can investigate (Art. 16) whether a company
should be designated as a gatekeeper and its compliance, as well as update
the list of obligations. The Commission can also impose fines up to 10% of
the gatekeeper's yearly turnover or periodic penalty payments up to 5% of
the average daily worldwide turnover (Arts. 30-31).
End-users, competitors and other organisations can collaborate in the enforcement
of the DMA by informing national regulatory authorities about illegal practices
by gatekeepers. The regulators can communicate to the Commission to start proceedings.
EU Court Case: Holding Apple accountable under the DMA
The FSFE is intervening for Free Software in a key court case involving Apple and the European Commission.
Apple is trying to avoid obligations derived from the Digital Markets Act (DMA).
The FSFE seeks to hold Apple accountable under the DMA in a developer-friendly way.
DMA's implementation and Free Software
Users' freedoms relating to Free Software depend on a political
and economic environment in which they can exercise their free choice
when using their devices without being stuck in closed environments under
control of gatekeepers. Digital markets can benefit with the DMA regulating
the commercial practices of large platforms, forcing them to facilitate
access to Free Software in devices. Nevertheless, the DMA still falls short
in some aspects involving Open Standards, the pressure gatekeepers can exercise
over decision makers, and complex digital enviroments.
Open Standards are missing
In the legislative process, the FSFE urged the inclusion of clear
language mandating the adoption of Open Standards for the interoperability
obligations, which was not done in the final version of the law.
Instead, the DMA mentions "free and effective interoperability"
(Art. 6(7)) regarding hardware and software features that can be
accessed/controlled via an operating system by third parties, as well as
"fair, reasonable and non-discriminatory access conditions" to apps
stores, search engines, and operating systems. The solution adopted may
allow gatekeepers to implement proprietary standards and restrictive
access to APIs that are incompatible with Free Software. This was a lost
chance to leverage competition with accessible and non-discriminatory
technical specifications. Open Standards remain an important element for
innovation by allowing market actors to innovate on top of technical
standards.
Security concerns vs commercial interests
Another source of concern relates to how the law allows gatekeepers to
limit interoperability for the sake of integrity and security of the
gatekeepers' services or devices (Art. 6 (3) and (7)). Our experience
demonstrates that companies have been claiming security concerns to limit
users' rights and software freedom even in the absence of empirical
evidence of such risks for the integrity of the devices. Instead,
commercial interests are the main drive to pursue such restrictive
practices. This provision in the DMA has the potential to hinder
compliance or even, in a worse case, strength or consolidate the
gatekeepers' entrenched position in the market.
Complex enforcement
The procedural enforcement efforts also raise questions regarding
achieving real and effective Device Neutrality. The DMA encompasses the
regulation of several complex layers of devices, as operating systems,
browsers, and apps stores, as well as interoperability and data portability.
Similarly to telecommunications law, such measures would require further
specification and further regulatory efforts for practical
implementation. As our experience has shown with Router Freedom in the EU,
although the related telecom rules were much simpler to implement, even so
they have been taking years to be properly applied by national regulators.
Therefore, not only the lobbying power of such platforms, the
allowances the law makes towards "security and integrity", and the absence of
clear language mandating Open Standards, but also market pressure can
relativize the enforcement priorities of the Commission and other
policymaking bodies.
Help making Device Neutrality a reality!
The FSFE has extensive experience in monitoring compliance with
telecommunications and internet legislation, working together with the
commission in antitrust cases, as well as with national regulatory bodies.
We will continue to dedicate efforts in the process of enforcing the DMA
and making Device Neutrality a reality in the EU. For that, we count on
your support for our work with a donation. Get active and help us
empower you to regain control over your devices!
It's November and our team heads to Bolzano for SFSCON, still thrilled by the
inspiring 2024 Youth Hacking 4 Freedom award ceremony! Last weeks we’ve also
launched a new page to keep you updated on the latest developments in
our involvement with the Apple vs. EC litigation. Find out the latest updates on
Router Freedom, REUSE and more!
We are excited to be back for the South Tyrol Free Software
Conference (SFSCON) on 8 and 9 November with talks, workshops and a booth! SFSCON is the place to be if
you’re passionate about Free Software and want to dive into discussions on key topics, including the need for sustainable, long-term funding for Free Software projects. Come to Bolzano to learn, connect, and be inspired!.
In 2018 Italy implemented Router Freedom. However regulatory decisions in
2019 and 2023 introduced exceptions for fiber networks. The Free Software
Foundation Europe has now urged Italy’s telecom regulator,
AGCOM, to remove these restrictions and fully restore users' rights to choose
their own equipment to connect to fiber networks.
The story of Ada & Zangemann is now available as an animated movie!
We’d also like to thank everyone who contributed feedback to the EC
consultation, urging European policymakers to establish long-term
sustainable funding for Free Software Additionally, we’ve submitted our
arguments in the ongoing Apple litigation. And great news, our hoodies
are back!
In 2024, we continued to promote software freedom through our presence
at conferences and events across Europe, as well as through our various
activities and initiatives. Despite our ongoing financial challenges, we
have actively raised our voice in defence of Device Neutrality and are
advocating for a dedicated Free Software budget in Europe.