Support 100 years of independent journalism.

  1. Science & Tech
19 February 2021updated 04 Sep 2021 8:25am

Why the EU’s new tech legislation could become the most lobbied in history

The Digital Services and Markets Act is the greatest regulatory threat that Big Tech has ever faced. But the industry is fighting back.

By Laurie Clarke

An internal Google document leaked last October revealed an aggressive campaign against new EU tech legislation. The plan included reframing the narrative around the legislation, “increasing pushback” against the French commissioner Thierry Breton, fomenting discord in the European Commission, persuading the US government to argue the company’s case, and mobilising a network of academics to echo its message through every echelon of the EU’s political hierarchy.

After years of piecemeal regulatory action, the EU has announced the Digital Services and Markets Act – twin legislative proposals that take aim at online content and competition respectively. The proposals signal a paradigm shift in the policing of tech companies, where anti-competitive business practices are hobbled from the outset. Google is not the only one resisting the proposed changes – a frantic Big Tech lobbying campaign against the legislation is under way.

Former European commissioner Viviane Reding called the fight over Europe’s GDPR data protection regulations, which came into force in 2018, the most aggressive lobbying campaign she had ever witnessed. The upcoming campaign has the potential to be even bigger.

The New Statesman’s analysis of EU transparency data shows that, in 2020, Google, Facebook, Amazon, Apple and Microsoft held 22 meetings with representatives of the EU Commission about the Digital Services and Markets Act (DSA and DMA) to put forward their case. Google leads the pack, holding nine lobby meetings with commissioners in 2020, which were concentrated in the last two months of the year. The legislative proposals were officially unveiled on 15 December.

The DSA and DMA were the most common issues in Big Tech lobbying meetings last year
Meetings held with representatives of the European Commission by GAFAM companies, 2020

Although focused in the latter part of the year, the number of meetings between Big Tech and EU commissioners to discuss the DMA or DSA outstripped the number of meetings on a number of other key issues of 2020, not least Covid-19. It is also important to note that this data may be underreported, because the topics discussed in the meetings are disclosed in bullet-point format by the Commission officials themselves, and mandatory disclosure only covers the top-level officials, not policy officers.

Sign up for The New Statesman’s newsletters Tick the boxes of the newsletters you would like to receive. Quick and essential guide to domestic and global politics from the New Statesman's politics team. The New Statesman’s global affairs newsletter, every Monday and Friday. The best of the New Statesman, delivered to your inbox every weekday morning. A weekly round-up of The New Statesman's climate, environment and sustainability content. A handy, three-minute glance at the week ahead in companies, markets, regulation and investment, landing in your inbox every Monday morning. Our weekly culture newsletter – from books and art to pop culture and memes – sent every Friday. A weekly round-up of some of the best articles featured in the most recent issue of the New Statesman, sent each Saturday. A weekly dig into the New Statesman’s archive of over 100 years of stellar and influential journalism, sent each Wednesday. Sign up to receive information regarding NS events, subscription offers & product updates.

Amazon, Apple, Facebook, Google and Microsoft have increased their lobbying spend in Brussels over the past several years, splashing out approximately €20m in 2019, according to the European Transparency Register. While this is a slight dip from 2018, the figure is expected to rise again for 2020 and 2021.

The DMA takes aim at “gatekeeper companies”, which control the access of other companies and consumers to a particular technological ecosystem. Large companies regularly accused of monopolistic business practices, including Alphabet (Google’s parent), Facebook, Apple, and Amazon are directly in the firing line.

Less certain is the status of Microsoft, which since being found guilty of antitrust violations in the early 2000s, has mostly (but not fully) evaded anti-competitive charges. Microsoft’s current strategy appears to be to persuade the EU it is not a gatekeeper.

Content from our partners
Cyber security is a team game
Why consistency matters
Community safety includes cyber security

Failure to comply with the new EU legislation could result in fines as high as 10 per cent of the companies’ annual global revenues, or even the requirement to divest parts of their business. Faced with this existential threat, narrative control is essential.

Tech Monitor: Europe’s Digital Markets Act is a shift to proactive Big Tech regulation Part of New Statesman Media Group

“These companies don’t really want to discuss what this could mean for their own profits, or even what the added benefits to the economy or to consumers would be,” says Margarida Silva, researcher and campaigner at Corporate Europe Observatory, an organisation that tracks lobbying in Brussels. Instead, they will frame their arguments around unintended impacts of the legislation on the economy, and to consumers or a country’s GDP. “They try to reframe it around costs rather than opportunity.”

Because tech companies’ lobbying budgets are so large, they can afford to focus attention at each level of the EU political establishment. Now that the Commission’s proposals have been published, the European Parliament and Council will discuss them and make amendments.

This means Big Tech’s attention will shift to MEPs and member-state representatives. Final legislation isn’t expected to be published until 2022, by which point Big Tech intends it to be significantly diluted.

Google held the most lobbying meetings on DSA and DMA last year
GAFAM meetings on the topics of DSA and DMA, with the European Commission and with members of the European Parliament, 2020

Amazon, Apple, Facebook, Google and Microsoft collectively held 19 meetings with MEPs about the legislation in 2020, although it should be noted that this data only extends up until 1 December. It’s not the full picture either, because not all MEPs consistently publish their meetings.

Big Tech is everywhere

Part of the force of the Big Tech lobby in Europe is its ubiquity. “They have so many staff that they can attend, basically, every single meeting happening in Brussels,” says German MEP Alexandra Geese. At public events and meetings, whether invited or not, a Google representative will be in attendance. 

“It’s not that you have the Google lobbyists sitting in your office from eight o’clock in the morning to evening; it’s that wherever you go, there’s somebody there with a different face,” says Geese. They are often interesting and amenable people, says Geese, and all espouse variations of Big Tech’s preferred arguments.

Tech Monitor: The US bills tech giants targeted in 2020 Part of New Statesman Media Group

But direct lobbying is only the most visible part of the influence machine. When Covid-19 recedes, social events will regain a major role. MEPs are typically bombarded with invitations to events hosted by lobbying associations that commissioners, industry and sometimes even civil society groups will attend.

In addition to being stimulating events, Geese says that for MEPs, it’s attractive to speak because of the visibility it gives them. Declining to attend on the grounds that such events are hosted by lobbying associations means “you’re not seen as an important player”.

The echo chamber

Another facet of Big Tech’s influence is a complex network of industry associations and think tanks that will echo its messaging. The ones with the strongest Big Tech representation include the think tank Bruegel, the American Chamber of Commerce, and the industry association Digital Europe.

Big Tech’s lobbying power extends far beyond individual companies
Membership of leading non-profits, think tanks and trade associations by GAFAM

These groups meet with EU commissioners and MEPs in addition to the companies themselves. EU Integrity Watch data shows that the American Chamber of Commerce held 43 meetings with EU commissioners in 2020.

Sometimes the tactics that some of these bodies adopt are questionable. “The GDPR brought what we can call American-style lobbying to Brussels and gave rise to ‘astroturfing’ groups,” said Chloé Berthélémy, policy adviser at the online rights body European Digital Rights (EDRi), speaking at a recent event. This is when a group masquerades as independent in an effort to conceal the interests they’re really representing.

“That artificially creates the impression that there is a diverse support for the position,” said Berthélémy. She said that around the time of the GDPR, new trade associations would “spring up from nowhere”. For example, the Industry Coalition for Data Protection, which she described as “an association of associations of the tech companies”.

Geese was approached by a body called the Center for Data Innovation at the beginning of 2020 to discuss lobby positions on the Digital Services Act. Amid concerns the group had not disclosed its corporate ties, Geese worked with Corporate Europe Observatory to bring a complaint against it. One year later, the centre, which describes itself as a non-profit research organisation, disclosed its financing from Microsoft, Amazon, Intel, Oracle and Google, among others.

Counter-lobby?

Civil society groups do not have the resources to match the saturation that Big Tech can achieve. Jan Penfrat, a senior policy adviser at EDRi, says some policymakers are explicitly reaching out to his organisation. “But obviously, with more resources, you can do more things,” he says.

There is also the problem of disproportionate access. European transparency data shows that EDRi had 11 meetings with commissioners in 2020. But this pales in comparison to Big Tech’s access. A snapshot analysis by Transparency International found that more than double the number of meetings were held with corporations than NGOs in the first 100 days of Ursula von der Leyen’s EU Commission.

There’s a fundamental sense in Brussels that Big Tech’s executives and lobbyists are insiders, and civil society groups are not. “They’re using informal channels of communication, trying to build closeness and complicity, which we don’t necessarily have…and are struggling to do,” said Berthélémy.

Tech Monitor: Big Tech is powerful in ways we haven’t encountered before Part of New Statesman Media Group

This state of affairs was epitomised by the former European digital economy and society commissioner Günther Oettinger’s exclusive “mini Davos” chalet retreat in the Alps. The guest list was dominated by tech and telecoms executives. EDRi and other civil society organisations were not invited.

Even worse, after Google’s DSA and DMA strategy was leaked last October, EDRi and other NGOs received a hurried invitation to a roundtable hosted by Breton’s cabinet. It looked like a last-minute, cosmetic attempt to counterbalance the tech lobby. “The DSA package was supposed to be published one week later, so there was absolutely no chance that this meeting could impact the text in any way,” said Berthélémy.

But civil society organisations face a bigger threat than being ignored: being co-opted. Penfrat says major tech companies have put energy into courting EDRi. Facebook invited EDRi to participate in efforts to develop its community rules, but Penfrat says the group has “no interest in putting our limited resources into trying to help a private company”, adding: “We want to avoid being used for whitewashing exercises.”

However, Big Tech’s efforts have had a corrosive effect on the whole NGO sector. “As civil society, we are constantly at risk of being accused of being part of this corporate lobby, of being part of the Google machine, or a Trojan horse for Big Tech companies,” said Berthélémy.

Will it work this time?

The big question is, of course, will Big Tech’s efforts to dilute the Digital Services and Markets Act work?

Pessimists highlight the EU’s past attempts to take on Big Tech. Although efforts to derail GDPR didn’t work, the legislation ended up hitting SMEs harder than tech giants, and its enforceability is somewhat lacking. “Even though you have quite a big and powerful mechanism, it hasn’t been fully implemented,” says Silva.

There are fears too that the DSA and DMA will be stalled at the member-state level. Lobbying can be more effective here, because “often member-state governments, and especially their representatives in Brussels, are a lot more permeable to lobbying than parliament”, according to Geese.

This fate befell the e-Privacy Directive, which, although it finally appears to be making progress, has languished in purgatory for four years. In leaked internal documents, Amazon boasted about creating friction between the European Council and Parliament to help achieve this outcome.

But although Big Tech companies have practically unlimited funds at their disposal, there are signs that European legislators won’t be as easily cowed this time.

The EU has fined Google around $10bn for antitrust violations to date. Last year, the Commission launched two competition probes into Apple and brought an antitrust case against Amazon for allegedly using independent sellers’ data. And for the first time in decades, antitrust sentiment is fomenting on both sides of the Atlantic.

Critics argue that Big Tech’s lobbying amounts to a distortion of the policymaking process. The success of its current campaign will be decisive for the power dynamics between the EU and Big Tech. “It’s a symbolic battle for corporate power in general,” says Silva.

[Read also: The big tech lobbyists targeting Capitol Hill]