EU regulations to outlaw self-preferencing by audio giants

LONDON — Imagine the scene in our house on Sept. 8 this year: It’s minutes after the announcement of the Queen’s death, and, like many in the United Kingdom and across the world, I am in the early stages of absorbing the news by listening to BBC radio reports. I am using the Amazon Echo Show device in our kitchen. I am also cooking pasta. “Alexa,” I call, “set a timer for nine minutes,” fully expecting the device to revert to the radio station having set the timer.

But no. In an outburst, gloriously inappropriate for the moment, Alexa responds, “Music makes time pass more quickly,” and then recommends a playlist. This was clearly an unwanted interruption, at variance with my unmistakable intentions, namely, listening to the radio. Whether one is a monarchist or not, Alexa could not have chosen a worse moment to offer an alternative so cheerily.

The fact that this can happen makes recent work in Brussels around the EU Digital Services Package more important than ever. It demonstrates the necessity for imposing some constraints on highly dominant platforms that both distribute material and offer their own content. Had I been cooking pasta in silence, the breezy suggestion of music might have been amusing. However, in this case, I was already listening to an audio stream of my own choosing, which made the interjection more objectionable. Neither was it a case of my having finished a podcast, after which — perhaps legitimately — it could suggest, “if you liked that, you might enjoy this.”

The EU Digital Services Package seeks to address precisely this problem, plus many more subtle ones. The EU signed the legislation concerned, the Digital Markets Act, into law on Sept. 14. It becomes enforceable from March 2023. The relevant provision here concerns “self-preferencing,” or “non-discriminatory ranking,” when an intermediary organization ranks and promotes its own products and services more prominently than those of other potential providers:

“When offering those products or services on the core platform service, gatekeepers can reserve a better position, in terms of ranking and related indexing and crawling, for their own offering over that of the products or services of third parties also operating on that core platform service.”

Who are the gatekeepers?

It is crucial to consider who these “gatekeepers” are. Essentially, the act is aimed at the major tech giants, who command a good proportion of the European market; they are assessed according to market share, number of users and revenue. Where they can influence purchasing and consumption:

“The gatekeeper should not engage in any form of differentiated or preferential treatment in ranking on the core platform service … in favour of products or services it offers itself or through a business user which it controls. To ensure that this obligation is effective, the conditions that apply to such ranking should also be generally fair and transparent.”

Habitually directing the consumer to a music-streaming service operated by the same company that provided the device itself would seem to fall foul of these standards.

Legislation must adapt to new risks confronting society. The European Commission also proposes complementary press freedom action through the European Media Freedom Act. It promises to support editorial independence, including transparency of ownership and provide mechanisms to assess media pluralism. I’ll leave it to the lawyers to debate where state competence ends and European legislation begins.

Habitually directing the consumer to a music-streaming service operated by the same company that provided the device itself would seem to fall foul of these standards.

The importance of dealing with this area seems to me indisputable. In an interview with the German broadcaster Deutsche Welle, the Belgian politician Katia Segers noted, “A war doesn’t start with weapons. A war starts with propaganda, disinformation and state-controlled press.” Surely we need, as responsible people, to choose one’s station and hear different viewpoints without being pushed in a particular direction. The music suggestion might have been innocent, and even fun in other circumstances, but we need to inquire how our preferences are being shaped.

Encouraging someone to listen to an audio source different from the one they prefer seems like a massive overreach by tech giants. Setting limits to this leverage of power is important and timely. But it also raises bigger questions around what is offered. Is it truthful? Do we know the source? Is it impartial?

The future of our societies rests on establishing media integrity and transparency and the ability to choose our sources without being steered in particular directions.

The author was head of Radio at the EBU until 2020, and before that managing editor of one of the BBC’s national stations. He currently advises media organizations, such as Radioplayer and the European Digital Radio Alliance. Read more of his work here.