DMA: Summary of the European Publishers Council’s Priorities for Amendments
to the Commission’s Proposal for a Regulation of the European Parliament and of the
Council on contestable and fair markets in the digital sector (Digital Markets Act)
The European Publishers Council (“EPC”), considers that the DMA proposal requires some essential
amendments to fulfil its early promise to ensure fair and non-discriminatory access to the
gatekeeping platforms through clear obligations and prohibitions. If we do not get these
amendments adopted by Member States, publishers wil not reap the anticipated benefits of this
legislation, and worse could find their efforts to exploit the publisher’s right wil be yet further
undermined. Our amendments are the necessary pre-conditions for vibrant, independent press
publishers and media companies to thrive in their digital transformation, and to ensure that the
democratic system remains healthy, diverse, uncorrupted and functional, without fear of
censorship, and uncontrol ed self-preferencing by the gatekeepers.
It is very important that EPC Members make contact with their governments urgently to
impress upon them the need for the key changes we are seeking. A list of your relevant
Ministers is enclosed
Time is now very short to get these changes through at the Council level as the Slovenian
Presidency is caving in to pressure from the Commission, who are using the weak Presidency
to finalise a text by end-October, after which very few changes would be possible. Indeed,
we expect a new draft from the Slovenians this week.
Note that many of our amendments have already been tabled in the European Parliament
but we need the Council to make these changes too for there to be a chance of success in
the final trilogues with the European Commission next year.
Our members use al the dominant gatekeeper platforms and intermediation services in order to
provide their publications to European citizens, meaning that they are dependent on the “core
platform services” in the DMA. The impact of global platforms, search and social networks has
never been experienced previously in the history of free media where these players get raw
materials for free, deploy discriminatory tactics and self-preferencing to maximize revenues to their
own superior benefit. The DMA is designed to change this. But we need some key changes to the
text if democratic debate and the right to be informed is no longer mediated by commercial policies
of platforms with no transparency to citizens as to how content appears where.
The designation of who is a gatekeeper under the DMA lies at the heart of the proposal together
with the definitions of core platform services: The DMA is quite correctly targeting only a smal
number of large digital platforms that are unavoidable gateways between digital service providers
and their large user base, threatening the contestability and fairness of digital markets. We do not
want this narrow scope to change.
The EPC proposes the following highly targeted amendments to the definition of core platform
services, and to the obligations and prohibitions in articles 5 and 6, to ensure fair and non-
discriminatory access to the designated gatekeeping platforms for our members through clear
obligations and prohibitions. Our ful position paper and amendments are available here.
I. Definition of core platform services
The EPC is general y content with the core platform services identified by the Commission but two
changes are needed:
a) Web browsers should also be included in the list of core platform services that fal
within the scope of the DMA, meaning that providers of browsers could then be
designated as gatekeepers and thus be required to comply with the DMA obligations.
We have seen with the Google Privacy Sandbox how Chrome – the dominant browser,
wil be strategical y very important for Google to maintain its dominance on the
b) The DMA should explicitly include voice assistant technologies and “smart” (internet
connected) TVs and voice activated speakers. The future of search for information and
media services will be voice activated, creating a new, untransparent gatekeeping
bottleneck for publishers and broadcasters.
II. The obligations and prohibitions imposed by the Proposal under Articles 5 & 6
The draft proposals are quite broad but the following changes are definitely needed:
1. The obligation for non-discriminatory general conditions of access for business users in
Article 6(1)(k) surprisingly only applies to users of “App Stores”. Logical y, and in order for
the DMA to be effective also for search and social networks, this must be amended to
o oblige al the designated gatekeepers to “apply fair and non-discriminatory general
conditions of access for business users”
o to ensure all core platform services in particular, the gatekeeping search engine,
and social network, apply “fair and non-discriminatory treatment” and do not
require advantages from business users that are disproportionate to the
intermediation service of the gatekeeper.
2. A broader prohibition of self-preferencing should be added to Article 6(d) beyond ranking
to cover further conducts which confer an advantage to gatekeepers’ own products or
services to the detriment of competing products or services provided by third parties,
future-proofing the DMA as fol ows:
a. On fair and non-discriminatory conditions: Article 6(1)(d) obligation on
gatekeepers to “apply fair and non-discriminatory conditions” to ranking should
be complemented by an obligation to perform regularly an algorithmic audit to
ensure that gatekeepers indeed comply with the Article 6(1)(d) obligation.
b. Article 13 should also be amended to impose on gatekeepers engaging in ranking of
products and services the obligation of a regular independent audit of their
3. On Data: Article 5(a) of the Proposal prohibits gatekeepers from combining personal data
sourced from the gatekeeping platform with personal data from any other services. This is
good but two amendments are needed to avoid gatekeepers finding loopholes:
o To prohibit gatekeepers from combining and using, for their own purposes, data
sourced from their core platform services with personal data col ected from sources
or services where they are present as third parties. This is to ensure that the DMA
wil put an end to gatekeepers’ practices that oblige end and business users to
agree to any practices as a precondition for the use of the gatekeepers’ core
o The end-user’s ‘consent exception’ must be deleted in order for the prohibition of
Article 5(a) above to be effective. After al , gatekeepers could, in practice,
circumvent this data combing prohibition by including clauses for end-users to give
consent in their Terms of Service and Privacy Notices as they do today - i.e. delete:
unless the end user has been presented with the specific choice and provided
consent in the sense of Regulation (EU) 2016/679.”
o Access to granular information and data in Article 6(1)(g): gatekeepers should be
required to provide access to granular, user-level and high-quality information, so
publishers can carry out their own verification of the ad inventory. Moreover, an
obligation should be added on the gatekeeper to provide such granular
information to independent third parties authorised by advertisers and publishers,
which are part of the measurement system.
o Real-time access to data: Article 6(1)(i) would oblige gatekeepers to grant effective,
high-quality, continuous and this obligation should not be restricted to data
provided for or generated in the context of the use of core platform services
provided by gatekeepers, but also extended to data provided for or generated in
the context of the use of ancil ary services offered by gatekeepers (e.g., payment
o The user’s consent requirement for data sharing included in Article 6(1)(i) is a
hurdle and should be deleted as it should be possible for such data sharing to take
place on the basis of any of the grounds envisaged in Article 6(1) of the GDPR.
4. On App Stores: Article 5(c) should be amended explicitly to oblige gatekeeping app stores
to al ow app developers to engage in any type of in-app or out-of-app communication with
their end users (and not only to “promote offers” to them) and
5. Article 5(e) should not be limited to ‘an identification services of the gatekeeper’ but
extended to all “ancillary” services that gatekeepers may wish to tie to their core platform
service, including payment services.
6. An explicit obligation for gatekeepers to negotiate, on fair and non-discriminatory terms,
for the use of content on their core platform services should be added to Article 6(1)(k).
This obligation would play a significant role in effectively addressing the power imbalance
that exists between gatekeepers and their business users, and which al ows gatekeepers to
undermine the new Publisher’s Right, and continue to exploit publishers’ content for free,
or through their own products. This should be complemented by an obligation imposed on
gatekeeper platforms to participate in final offer arbitration, whereby an independent
arbitrator wil determine what is a fair price, if agreement between the gatekeeper and the
business user cannot be reached. The inclusion of such a mechanism in the DMA wil ensure
that al publishers are treated fairly and in a non-discriminatory manner and avoid situations
whereby gatekeepers conclude agreements only with certain actors of the press ecosystem,
e.g., after the intervention of a national competition authority (as happened in France with
regards to the remuneration of publishers by Google). The implementation of such a
mechanism in the DMA is the next logical step after the introduction of the press
publishers right in the Copyright Directive, in order to guarantee independent journalism
in al its breadth and diversity in the digital era and give a future perspective to a free and
7. Article 6(1)(k) should also require gatekeepers to refrain from making it more difficult for
business users to advertise or provide their offers thus limiting the fairness and
contestability of digital markets.
III. Enforcement and the interplay between the EU and national levels
The DMA envisages an over reliance on the European Commission for the enforcement of the DMA.
There is merit in al owing Member States to not only request the Commission to open a market
investigation for the designation of a gatekeeper, but also to open market investigations for non-
compliance and / or systematic non-compliance. Instead, each Member State should be al owed to
request the Commission to initiate such proceedings. Moreover, we are concerned about the way
the Proposal addresses the interplay between the DMA and existing national laws concerning
large online platforms which could undermine existing national laws. This would not be helpful.
The EPC considers that a significant gap in the Proposal is the lack of a formal complaint system,
to enable business users that continuously use the gatekeepers’ services and thus are in the best
position to witness whether the gatekeepers comply with the DMA. A complaint system would
furthermore increase transparency, allowing third parties who are directly affected by the
gatekeepers’ conduct to be involved in the enforcement of the DMA, an instrument that aims to
make digital markets fair and contestable for the mil ions of third-party business users.