ARTICLE 19 is aware that electronic communication markets have a huge role to play for enjoying the right to freedom of expression and information and other human rights. For this reason, as we have explained in the past, in the European Union we closely followed the work of the Body of European Regulators for Electronic Communications (BEREC) and engaged mainly by submitting contributions to their public consultations and providing feedback to their work plans.
In November 2019, we did so for the BEREC work plan for the year 2020, where we, among others: called BEREC to ensure that the action taken with regards to digital platforms is consumer-centric and respectful of consumer’s rights. With regard to 5G, we stressed that allocating local licenses for spectrum can allow more verticals-uses, boost innovation and lead to better quality and more choices, and we suggested BEREC to support this trend. In addition, we repeated our call for regulatory authorities within the EU to better follow the work of standard setting organisations, as we are conscious of the impact that technical standards can have on end users’ human rights.
More recently, ARTICLE 19 has provided feedback to the BEREC work plan for the period 2020-2025.
- ‘User protection’ should include human rights considerations. Among others, we have welcomed BEREC’s approach that, apart from monitoring market developments, aims at concrete solutions for relevant challenges. We are also glad to support BEREC’s commitment to make sure ‘that technological, economic, legal, and user protection perspectives are integrated in the design and practice of regulation’. In particular, we call BEREC to adopt a wide interpretation of ‘user protection’, which includes considerations about the impact of regulation on users’ human rights.
- Interoperability should be matched with unbundling. We have suggested BEREC to look at other remedies, in addition to interoperability, which could help to increase market contestability and support both competition and innovation. In particular, ARTICLE 19 has called BEREC to consider obliging big players to unbundle the services they offer. The bundling of offers allows large platforms to create ecosystems, to impede market entry of potential competitors for the provision of each of the bundled services, and to lock in consumers. To impose the unbundling of these offers, coupled with interoperability requirements, would strongly lower down barriers to entry, make markets contestable again and, in turn, offer concrete alternatives to consumers.
- Default settings should be used to set human rights standards in the market. Default settings used by platforms with high degree of market power play an enormous role in shaping consumers’ behaviours. Default settings can nudge consumers, or, depending on the level of (lack of) transparency, go as far as manipulating their choices. It is therefore clear that default settings can help establish standards in the market, for example in terms of transparency, data protection or choice. BEREC should consider intervening on default settings of big players as a way to improve market standards in the direction of open competition, transparency, fairness and consumers’ empowerment.
- Empowering end users should include providing them with more choices. End users’ choice plays a key role for the establishment of sustainable and open digital markets. To make choices, end users need at least three elements: the availability of sufficiently valuable alternatives, the freedom from coercion and manipulation, and a sufficient degree of information. We urge BEREC to consider the above elements as targets of its concrete action towards the empowerment of end users.
- Institutional cooperation and the pandemic. The institutional cooperation between BEREC and other relevant institutions will be key to protect both sustainable and open markets, and consumer’s rights is the response to the Covid-19 pandemic. Part of the strategy to respond to the pandemic will rely on digital instruments and services and will result in the establishment of a surveillance infrastructure. Part of it already exists, part will likely be set in the coming days, weeks and months. BEREC, in cooperation with other relevant institutions, has a role to play to make sure that this infrastructure will not be permanent, and that as soon as the emergency will be over this surveillance apparatus will be dismantled.