July 14, 2018

Origins and Narrative of the EU “Digital Single Market”

Organized chronologically, bold means terms or meaning, highlight is the most important stuff. Digital single market in French: Marché unique du numérique.

DSM out of EU context

Flint’s 1997 article, “Internet Domain Names: Proposal for a Cybermark” uses “digital single market” in reference to legal uncertainty in the new virtual commercial environment, particularly with regard to registering trademarks. This article doesn’t resurface in any later DSM literature or EU stuff.

“DSM” concept pre-2009 (i2010, Lisbon Strategy, InfoSoc Viviane Reding)

Directive on E-Commerce (2000) and Directive in the Field of Information Society Services (1998) both refer to the “internal market” of an “information society”. These Directives are primarily concerned with creating a legal framework to facilitate e-commerce in the European “internal market”[1]. However, the First Report on the E-Commerce Directive (2003) also states that the Directive contributes to “the free flow of information and freedom of expression in the European Union”. There are no references to the Internet as a public space or common place.

In 2005, the i2010 European Information Society 2010 strategy was created to contribute to the Lisbon Strategy. One of its three priorities are “the completion of a Single European Information Space...”. The Communication states that this includes the stimulation of favourable market developments and the promotion of the knowledge society (e.g. lifelong learning, creativity and innovation) in an internal market. This wording doesn’t seem to survive in any later communications by the EU. However, the practical objectives deal primarily with the expanding European internet access, services, and commerce.

The 2007 EC Communication on Creative Content Online in the Single Market deals with the challenges of developing business models and deploying cross-border online creative content in the Single Market. It aims to make diverse European creative content available.

The initial objectives of the i2010 are reiterated in the EC’s April 2008 i2010 Mid-Term Review. The Review frames the “Single Market” as incomplete without the continued development of ICT. As in the first i2010 publication, “single information space” is concerned with expanding telecoms, IT services, and broadband accessibility. In order to combat the fragmented state of the online market, the Review calls for better policy in relation to e-commerce, online content creation, and online interaction in favour of users. This language foreshadows future DSM rhetoric of the DSM as an incomplete portion of the single market.

Viviane Reding, Commissioner for Information Society and Media, delivered the Ludwig Erhard Lecture on 9 July 2009. She emphasised the importance of the digital economy in Europe’s economic recovery. She wants to work toward “...a simple, consumer-friendly legal framework for accessing digital content in Europe's single market, while ensuring at the same time fair remuneration of creators…” with the participation of content creators.

The term “digital single market” is first mentioned in the EU context in the 4 August 2009 Commission Staff Working Document. The document summarises the list of actions set out by i2010. The 2008 Mid-Term review objectives are included in the document, but summarised as, “The mid-term review also identified new themes to consider for a longer term agenda for the EU – the digital single market, the role of the users…”. There is no further analysis of the Review or indication of where the term came from.

One month later (September 2009), Barrosso (President of EC) used “DSM” in “Polictical Guidelines for the Next Commission”. He states that part of the European Digital Agenda will be to tackle the main obstacles to a genuine digital single market. Like Reding, Barrosso is talking about providing access to high speed broadband which will translate into jobs and business growth.

While Barrosso and Reding had both begun to use “DSM” in 2009, Commissioners Kroes (Competition) and Kuneva (Consumer Protection) continued to refer to the “internal market”. Both Commissioners were speaking about e-commerce specifically - a narrower context than Barrosso and Reding.

Reding delivered another speech at a lunch debate on 6 October 2009 titled “Future of the Internet and Europe’s Digital Agenda”. She speaks about different aspects of the Digital Agenda she and Barrosso had already announced they would be developing. She states that “a Digital Single Market which is the main aim of the Digital Agenda”. Prior to this, Reding has only spoken about the economic aspects and advantages of a DSM. Here, she says that she and Barrosso want to stimulate public debate around the potential legislation leading to “a Digital Single Market for Creative Content for the benefit of rightholders, internet service providers and consumers”.

The 22 October 2009 Reflection Document from the Directorates General Information Society and Internal Market and Services is titled, “Creative Content in a European Digital Single Market: Challenges for the Future”. “DSM” is only mentioned once in the 21-page document. The document uses “single market” for “creative content online” or “digital content” more frequently. This document comes less than 2 years after an EC communication titled “Creative Content Online in the Single Market” where the term “digital single market” was not mentioned even though the topic of the document is exactly the same.

A 22 October 2009 EC press release concerning e-commerce continues to use “single market” even though the primary issue facing e-commerce in Europe is that there are multiple digital markets. At this time, e-commerce seems to fall under the control of the Commissioner for Consumer Protection (Kuneva). Similarly, the 22 October 2009 Communication “Cross-Border Business to Consumer E-Commerce in the EU” only uses “internal market” to refer to the European e-commerce situation.

The 28 October 2009 EC Communication “A Public-Private Partnership on the Future Internet” uses “DSM” once, stating that the Future Internet PPP is part of the larger, upcoming Digital Agenda and movement toward a DSM.

Commissioner Kuneva (Consumer Protection) delivered a 5 November 2009 speech, "A Blueprint for Consumer Policy in Europe: Making Markets Work with and for People" at the Lisbon Council. She still uses “internal market” or “single market” when speaking about online retail and e-commerce in the EU. This seems to be more than word choice - Kuneva envisions the larger Single Market as incomplete without the development of the online retail market. Kuneva never gets beyond e-commerce/retail. Reding and Barroso, on the other hand, envision the DSM as something larger, including everything conceivably related to technology and the Internet. This could be because Reding + Barroso are concerned with the DSM in its broadest sense, while Kuneva, as Commission Consumer Protection, is only responsible for consumers and the online retail sector.

The consulting company DIW Berlin published a report for the DG Information Society and Media, “A Single Market for an Information Society – Economic Analysis” on 8 November 2009. Nowhere is “DSM” mentioned even though this would be congruent with the language used by members of the DG InfoSoc. The report analyses e-business within the European Single Market, which exists in an Information Society. This language is similar to that used before “DSM” emerged as a term. This may indicate that “DSM” continues to be a term used by high-level EC officials, and not the public sector.

4 March 2010 Commission Staff working document, “Europe 2020 - public consultation: overview of responses”. Business representatives from the consultation wanted the “creation of a digital single market” to remedy the fragmented state of EU e-commerce market to be a priority. There is no indication of whether the language “DSM” came from the business reps or the EC (documents no longer exist online).

The European Policy Centre published a study in March 2010 “Economic Impact of a European Digital Single Market”. They define how “DSM” is used in their study:

  • A harmonised and integrated European market without barriers between EU member states hindering the use of digital and online technologies and services
  • A single market which encourages cross-border online trade
  • A single market which encourages investments in new online services and applications
  • A single market with a high level of e-skills and e-readiness
  • A single market which encourages investment in digital infrastructure
    This study is cited in several subsequent EU documents. Note, “DSM” is at its core an economic initiative.

The 3 March 2010 Communication, “Europe 2020: A strategy for smart, sustainable and inclusive growth”, provides an overview of the Europe 2020 strategy as a whole. Part of the Digital Agenda (not detailed in this document), digital society and digital single market are phrased as action plans to achieve economic growth in the EU. I believe this is the first “guiding document” (like the i2010) to use the term “DSM”.

Finally, we get the Digital Agenda for Europe, EC Communication on 19 May 2010. The creation of a “digital single market” is one of the enumerated action areas in the Agenda. 4 action areas designed to bring Europe up to the same standard of Internet use (by creating a DSM) as other world markets. 1) Opening up access to content, 2) making online and cross-border transactions straightforward, 3) building digital confidence, 4) reinforcing the single market for telecommunications services. Much more detail is provided under each subheading. This Agenda includes the “ancillary” DSM issues like balancing rightsholders’ and the public’s rights and consumer contract rights.

At this point (summer 2010), the EU Digital Agenda’s action plan to achieve a DSM is in line with the EPC’s definition of DSM. The term began to be used in the context of job creation/economic stimulation to bring an end to the economic recession. “DSM” is replacing many other terms (like internal market in an info society)[2]. This may have had the effect of removing the multiple meanings or nuances of the other definitions and inserting the EU’s constructed “DSM” narrative. By the time the Digital Agenda is published, DSM encompasses broader topics but is still primarily framed as an economic action plan. Consumer, economic rights are considered. There are no references to the DSM’s potential role in Internet as a public or common space (other than in the i2010 document mentioned above).

DSM between 2010-2014

Recurring Themes 2010-2014:

  • Europe lagging behind other markets in maximizing DSM/digital market
  • Stimulate economic growth by increasing access to DSM
  • DSM conceptualized as an independent concept vs part of the larger Single Market
  • DSM as something that exists (a digital resource to be exploited) vs something that is being created, a product of a policy initiative
  • The DSM initiative/project is considered to be of the same magnitude as the 1992 Single Market Programme.

DSM as portion of SM, 2010-2014

“DSM” is being used at higher, policy guiding levels, not in each individual document that contributes to the DSM agenda at a more practical level. In other words, “DSM” is used in reference to the policy initiative, and less frequently when talking about the practical actions to bring it about (i.e. directives/communications that deal with smaller digital issues, commerce, e-signatures, etc). For example, these directives, decisions, and regulations made between 2011-2014 under the umbrella of “DSM” do not mention the term “DSM”, even when their subject matter is directly related to achieving a genuine DSM. Most of them mention that the piece of legislation is pursuant to the goals of the Digital Agenda, Europe 2020, and DSM. They seem to refer to these broader, directing documents for an understanding of the DSM but then do not include “DSM” in the provisions of the actual document. Some examples: Setting up the European multi-stakeholder platform on ICT standardisation, Measures to reduce the cost of deploying high-speed electronic communications networks, electronic invoicing in public procurement, establishing the Connecting Europe Facility…, on guidelines for trans-European networks in the area of telecommunications infrastructure…, on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. I found these by searching “digital single market” in all EU legislation passed between 2010-2014 (communications, etc not included in search).

It seems some of the conversations about the items under the umbrella of DSM that do not explicitly refer to “DSM” are happening outside the language of DSM. Copyright and IP, for example, have their own set of terms and the discussion/legislation happens separately from Digital Single Market issues. The May 2011 EC Communication “A Single Market for IP Rights” is directly related to growing the DSM but doesn’t use the term. Here, (digital) IPR is treated as an aspect of the Single Market rather than the DSM. The driving force behind a Single Market for IPR is the same as the DSM - to stimulate economic growth by accessing an untapped sector of the economy.

Similarly, the June 2011 “Digital Internal Market” study doesn’t use “DSM” even though it’s about e-signatures and e-procurement in a Digital Single Market. The European Commissions’ January 2012 proposal for GDPR doesn’t use DSM either, even though it could be said to fall under the umbrella of the DSM. A February 2012 EC press release implies the DSM is an incomplete piece of the larger Single Market.

In a European Added Value Assessment from January 2013, “Better Governance of the Single Market”, an analysis of the DSM is included in the larger analysis of the Single Market. The assessment treats the DSM as an EU-created policy initiative, rather than a resource that is sitting untapped.

An EP library briefing from May 2013, “Further steps to complete the Single Market” says the DSM is one of the parts of the Single Market that is not yet completed.

Again in the September 2013 EC Communication, “Opening up Education: Innovative teaching and learning for all through new technologies and open education resources” there is no mention the DSM.

DSM as standalone market/concept, 2010-2014

Even when the DSM is talked about as an independent concept/market from the Single Market, it is still a very commerce-centric term. The February 2012 EC Communication “A Coherent Framework for Building Trust in the DSM for E-Commerce and Online Servicesis motivated to bring Europe’s DSM up to speed with other similar markets (like the US digital market). They say “the unrealised potential is enormous” (untapped resource). The DG Internal Policies’ study from August 2012, “Roadmap to Digital Single Market”, tracks the changing priorities of the DSM project since its introduction in the 2010 Digital Agenda. The tracked priorities are Common European Sales Law, Data protection, E-signature, e-identification, ADR/ODR, Collective rights management, orphan works, Re-use of public sector information, and payments parcel delivery, trust marks, cloud computing.

The December 2012 EC Communication “The Digital Agenda for Europe - Driving European Growth Digitally” doesn’t redefine DSM, but it changes it’s practical goals/actions to make the definition reality (for example, regaining world leadership of network services).

The EC Communication on “Content in the Digital Single Market” continues along the narrative of attempting to access an untapped sector of the economy (digital). In this document, the EC wants for further open access to the “DSM” through content.

I noticed “EU fundamental rights” in relation to the DSM for the first time in the EP’s December 2012 Resolution “Completing the DSM”. One of the primary concerns in the resolution is how to safeguard citizens’ fundamental rights as the DSM is brought about. Balancing users/citizen rights and rightsholders interests is an issue. The primary motivation is to bolster consumer and business confidence in the DSM to ensure it is being fully taken advantage of.

The July 2013 EP resolution on “Competing the DSM” truly begins to use the DSM as a huge concept that encompasses everything to do with digital economic life. Here the DSM is also something that needs to be tapped, that exists and needs to be taken advantage of. But also term “completing” the DSM. Another EP resolution from September 2013, “Digital Agenda for growth, Mobility and Employment: time to move up a gear”, is focused more on building/completing a DSM. Both conceptualizations of the DSM are used by the EP, but it is always a stand-alone concept (not part of SM).

A study for the DG Internal Policies in November 2013, “Discrimination of Consumers in the Digital Single Market”, is unique as the first EU document (that I’ve found) to write about the legal ramifications of the Internet as a “space”:

“The Internet has brought about changes to the way of defining goods and services offered digitally. The general question arising from the unlimited scope of the digital space is whether, or to what extent, legal measures serving to protect the intellectual rights of inventors, researchers, authors should be nationally limited within the EU.

The study notes that the consumer discrimination present in the DSM should be minimised to prevent consumer frustration with the DSM. This consumer discrimination doesn’t concern fundamental freedoms - fundamental freedoms come into play in balancing the objectives of EU law at a higher level. Finally, the study finds that the DSM is founded on free trade and undistorted competition - and IPR clashes with both of these. Whatever the solution, national measures cannot create barriers to legitimate trade. Priority to the economy, of course.

DSM continues to be a large, all-encompassing concept in another study for DG Internal Policies, “How to Build a Ubiquitous Digital Society” also published in November 2013. DSM is defined as a “market structure aimed for by the European Commission whereby online services and entertainment can flow freely (without regulatory barriers) across national borders within the European Union”.

Juncker 2014 DSM announcement

Digital Single Market in 2014 election campaigns

The EPP’s action programme for the Dublin Congress, 6-7 May 2014, includes a section on the Digital Agenda, which the “EPP has been, and will continue to be, at the forefront of the development of the Digital Agenda.” The programme uses the broad meaning of the term “DSM” to include telecomms, Europe’s Cloud Strategy, information and security technologies, economic growth and job creation, and the balance of personal data with the free flow of information in the EU DSM. It does not go quite as far as Juncker will in his 2014 political guidelines, where the DSM is framed as a unifying and stabilizing force in Europe.

The EPP/Juncker’s campaign manifesto published for the 22-25 May 2014 elections also includes a brief summary of the “single market in digital services, which is central to the creation of new digital jobs.” “DSM” also shows up in this news article published on the EPP’s website.

Here I will summarize the language used by each party in the 2014 EP election concerning the DSM. In brackets are the number of seats the party won.

  • S&D (191) makes one mention to the digital agenda that must guarantee broad access to the internet.
  • ALDE’s (67) manifesto states that they will “reinforce the single market in energy, the digital market, financial services…” and that a “digital economy is vital to jobs. We will work to create a modern economy that simplifies life through more e-services, and stimulates e-commerce by improving fast internet access, guaranteeing an open internet, fight for net neutrality and creating a genuine single market in telecommunications…”
  • The EFA's (50) manifesto makes no mention of the words “digital” or “single market”.
  • ECR Group’s (170) Commission Work Programme states that the creation of an “efficient digital single market” will reinvigorate the economy. Under a section titled “Digital economy” they say, “Recent proposals from the Commission to complete the digital single market have come at a time when many of the regulatory provisions to be amended by the proposals are still themselves being implemented or have otherwise not undergone a substantive review process.” The ECR Group focuses on telecoms growth, regulation, data protection, and cyber-security.
  • The EAF’s manifesto does not mention the words “digital” or “market”.

I could not access manifestos for the European Democratic Party, the European Greens. Brief summaries of all parties manifestos can be found here.

Juncker delivered his political guidelines in his opening statement to the EP Plenary Session. The speech is titled, “A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change”. The DSM is only a small part of his speech, but he uses it as a tool to unify an unravelling Europe. He seems to conceptualize the DSM as something to be built, then used to generate economic growth. Juncker’s DSM is the larger concept that includes all aspects of digital economic life. He says, “enhancing the use of digital technologies and online services should become a horizontal policy, covering all sectors of the economy and of the public sector.” He is motivated by €250 billion growth (a higher figure than lots of previous numbers I’ve read). He concludes by saying Europe is unravelling, we need to “breathed a new lease of life into the European project.” Take action, “Europe” is our shield. The DSM part of the plan to unify and stabilize Europe via the economy and public sector[3].

  1. The EU has exclusive competence to establish competition rules for the functioning of the internal market and common commercial policy. They have shared competence over consumer protection, internal market. They have competence to provide arrangements within which EU members states mist coordinate policy over economic policy. ↩︎

  2. I also searched for the French term for DSM, “marché unique du numérique” but this did not yield many useful results. This could be an indication that the term is mainly an EU invention (and therefore used mainly in English documents). ↩︎

  3. It may be interesting to read Vodafone’s April 2014 perspective on the proposed DSM regulation. ↩︎