Reding between the lines

The speech given by European Commission vice-president (and new Twitter user) Viviane Reding (read or download it here or even watch it here) at a think-tank’s conference on the ‘digital single market’ earlier this month is a very interesting one. It highlights the different ways in which the Commission is approaching the question of electronic commerce, and some of the areas of dispute that are likely to arise in the near future. There are two main areas of discussion in the speech.

The first is the proposed single Directive on consumer rights (which looks like it’s moving again after a long period of not much happening), which Reding argues is an important part of the promotion of digital cross-border trade. Of note here is the lack of any mention of the parallel review of the Electronic Commerce Directive (DG Markt consultation in progress) – although that’s going to be a storm all of its own (I’ll come back to this in a later post). The other thing to note about Reding’s approach is the firmly expressed argument regarding (and equal space given to) the value of a single European contract law in terms of the digital market. This is a longer-term Commission project (also in Reding’s domain of justice, rights and home affairs), but it’s quite revealing how, as with discussions on copyright and the market for music, the lack of cross-border transactions is perceived by the Commission as a result (at least in part) of the lack of harmonisation. In the case of music, the counter-argument is that it is record industry inaction that is to blame instead! In the case of consumer and contract directives, it seems very likely that arguments for both will contain frequent references to the need to promote e-commerce.

The other focus is data protection, and here again there must be a fight ahead. Reding calls for a more interventionist approach in terms of consent while also backing away from the current notification obligations. There are various mentions of concepts like data minimisation and better security, as one might expect. This is again placed in the context of consumer confidence, although it would be most interesting to find out how real the connection between criticisms of the current Data Protection Directive (of various sorts) and the views of consumers actually is. This is certainly not to say that I believe only those issues demanded by consumers should be taken seriously – clearly, data protection serves a range of purposes – but making an unsubstantiated link may be less persuasive than ignoring it entirely and assessing the Directive from other approaches. The difference between the DPD of 1995 and the forthcoming review is the new understanding of data protection as an EU fundamental right, and also the relationship between data protection legislation and principles of privacy more generally.

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