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Digital Markets Act — a fairer market for app developers and users|Glacier Kwong

At the end of last year, the European Commission proposed a piece of legislation, the Digital Markets Act (DMA). On the surface, it belongs to the field of competition and anti-trust law. It is to ensure a fair and open digital market with online platforms that act as “gatekeepers” in the online world and regulate them.

Any entity in a strong economic or media position with significant influence on the EU market will be considered a gatekeeper and subject to the DMA. The top 10 technology giants that qualify as online information “gatekeepers” under the new regulation include Facebook, Amazon, Apple, Google, Microsoft and Snapchat in the US, Alibaba Group and Zigzag in China, Samsung in Korea and Booking.com in the Netherlands.

But the proposed legislation actually has far-reaching impact on us and those who are living under oppression. The services we have access to on our smartphones have to be listed on each operating system’s Appstore before we can download and use them. Imagine someone wrote an app not available on Google Play Store or iOS Appstore. It would have no users, because no way would it be found.

Over the past few years, tens of thousands of apps have disappeared from Apple’s Chinese App Store — including those of foreign news agencies, gay dating services, encrypted messaging and the ones related to the Dalai Lama. Apple has also removed tools for organizing pro-democracy protests, like HKmap.live in 2019 and those bypassing internet restrictions, like VPNs. In 2021, ProtonVPN said that Apple is blocking updates because of its description on the Appstore, just days after the UN said that people in Myanmar should use Proton apps during the military coup.

Companies like Apple come up with the same excuse that they remove apps or contents only because they have to comply with Chinese laws, “These decisions are not always easy, and we may not agree with the laws that shape them.” Apple said, “But our priority remains creating the best user experience without violating the rules we are obligated to follow.” Tim Cook has said that even if he disagrees with Chinese law, the world is better off with Apple’s presence in China. With it implementing its first ever human rights policy last year, it comes as an irony that Apple has been an accomplice of Beijing while branding itself to be a human rights advocate in its marketing campaigns. Even though Tim Cook has repeatedly stressed that if Apple is not in the China market, then it would not be possible for it to make meaningful changes, the truth is that Apple is being changed by Beijing, not the other way around.

Laws like the DMA will help tackle this kind of behavior. Under the DMA, businesses that gain access to consumers and offer services in the market via gatekeepers will operate in a fairer business environment. Gatekeepers cannot force service providers to accept their unfair terms and conditions limiting their development. Hence consumers will have better access to services that they actually need, which means that as for Hongkongers or activists from other parts of the world, they will have better access to services that help to defend and protect them against dictatorships.

Although the proposed DMA is a European law, it is extraterritorial applicable. If a company, despite not an establishment in the EU, has a “significant number” of users in the EU or aims at the EU market, i.e. accepting payments in euros or offering a platform in several EU languages, then it might be subjected to DMA. Simply put, this proposed European legislation might have significant impact on what services we have access to in the future.

The proposed DMA is not an one-off solution to the problem the world and Hong Kong are facing, but it can be part of an effective solution. The legislation is more than just a piece of anti-trust law, it is a piece of legislation that has positive impact on human rights. I hope more democratic states will adopt similar legislations, so that big tech companies will shoulder the responsibility for protecting human rights.

(Glacier Kwong, born and raised in Hong Kong, became a digital rights and political activist at the age of 15. She is currently pursuing her PhD in Law and working on the course for Hong Kong in Germany. Her work has been published on Washington Post, TIME, etc.)

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