The Digital Services Act — a case-study in keeping public in dark

Yet, at the crucial last stage of negotiations — the trialogues — the EU Institutions closed their doors and shut citizens off. (Trialogue hasn't even made it to the Oxford Dictionary but it is a commonly used term in the Brussels Bubble. It refers to the informal stage of EU policy-making when the co-legislators, European Parliament and Council, come together under the guidance of the EU Commission to hash out their disagreements and find a joint position on policy proposals.)

Or "horse trading" as the EU Ombudsman has put it.

Trialogues are also often the last real stage of EU policy-making. Over 80 percent of all EU processes include a trialogue stage and the vast majority of these are then swiftly adopted without changes. We see this happening with the Digital Services Act too as — after a public squabble over what had actually been agreed — the trialogues compromise was waved through the Council and is now expected to be adopted by the Parliament.

Thorny issues got settled during the trialogues. Co-legislators had to find a compromise between very different positions when it came to issues such as surveillance advertising, dark patterns and platform scrutiny. Not only that, as the small group of policy-makers and officials discussed entirely new proposals such as the creation of a new crisis management mechanism.

In January 2022 a small group of policy-makers started discussing the rules that are now to bind and impact the lives of millions. Yet, neither Council, Parliament or Commission shared the dates, agendas or notes of the meetings, the preparatory documents, proposals and opinions that were discussed or the agreements that were being achieved.

Requests made under access to documents law were either rejected or so severely delayed that the answer was only provided after the trialogues discussions had ended.

The last DSA political trialogue lasted nearly 16 hours and finished at 2AM. It would take 53 days until the public would get to know exactly what was decided in that room.

In February, over 40 NGOs and trade unions working on transparency, media, democracy and digital rights, asked the EU policy-makers to open up these negotiations. The French presidency of the EU and the lead MEPs haven't even responded.

The commission responded to the question of opening up negotiations, two months after the end of the political trilogues. The response wasn't promising.

The Commission agreed small improvements to trialogues transparency could be made, yet argued against disclosing too much, repeating well-worn arguments that transparency could limit the "space for exchange and open discussion between the institutions", slow down negotiations, and increase lobbying pressure.

Secrecy didn't stop well-resourced corporate lobbyists from getting up-to-date information and using it in their lobbying during the trialogues.

Spotify and Google in the know

Companies and lobby groups like Spotify, Google and International Federation of the Phonographic Industry (IFPI) were able to lobby member states using live knowledge of the trialogue discussions on content ranking systems, advertising and liability for search engines.

This doesn't come as a surprise. Big Tech firms spend small fortunes tracking and influencing EU discussions. Just take Google, a company that declares spending at least €6m lobbying the EU, hires ten lobby consultancies to work on its behalf gathering information, making connections with policy-makers and preparing influencing strategies. Facebook hired 13.

Secrecy is apparently not a problem for those with deep pockets and good connections.

Those that don't have multiple lobby consultancies or that aren't already well connected with EU policy-makers struggle to understand what is being discussed and what has been agreed. Their access to information is limited to leaks or to after the process is finished. At that stage the ability to have their voices heard is marginal.

This is not good policy-making.

The European Court of Justice has already ruled that trilogues — informal or not — are a part of the EU policy-making process and, as such, the public should have the right to access to, scrutinise and indeed influence it.

It is too late now for the Digital Services Act but in the next year there will be many more: from the ongoing ePrivacy Directive, to the upcoming Artificial Intelligence Act, Platform Workers Directive, Data Act, and on and on.

We should celebrate the achievements and shortfalls of the Digital Services Act while acknowledging that this is not a good way for the EU's representative democracy to reach decisions.

The EU Institutions have to break open the trialogues to allow citizens to understand and follow negotiations as they are ongoing. This means the proactive, timely and regularly updated publication of positions and compromises reached during negotiations.

This is the level of transparency public participation requires and, as such, it's a matter of urgency.