On general monitoring - platforms being hypocrites

With the DSA consultation closed there is now the predicatble onslaught of statements, position papers and other writings (here is a highlights reel from Euractiv. While it will take some time to properly analyse all of the responses to the consultation this paid-for opinion piece by EDiMA caught my eye today.

In it EDiMA (the trade association representing internet platforms in the EU) is unsurprisingly arguing that everything is fine and that the EU legislator must leave the key principles of the e-Commerce Directive intact. Among the key pillars of the the ECD that EDIMA wants to preserve is the prohibition of general monitoring obligations in Article 15 ECD:

The Prohibition of a General Monitoring Obligation means that service providers cannot be forced to monitor every action of their users, protecting the fundamental rights of European citizens.

Now it is good thing that tech platforms care about the fundamental rights of European citizens, but this is a fairly hypocritical position for an organisation representing platforms whose entire business models are build on permanently monitoring the behaviour of their users.

While EDIMA is correct to point out that we would all be worse off should EU member states be allowed to require online services to monitor their users, the fact that they do so without being required is just as problematic for the fundamental rights of European citizens.

In the context of the discussion about a possible Digital Services Act, this means that in addition to preserving the prohibition on a general monitoring obligation we will also need to think about measures that prohibit general monitoring by platforms of their users (as part of their business models). I doubt, that once such measures are on the table we will hear EDiMA invoke the fundamental rights of European citizens.