Access to data and algorithms: For an effective DMA and DSA implementation

In 2022, EU policy makers adopted landmark pieces of legislation, notably the Digital Markets Act (‘DMA’) and the Digital Services Act (‘DSA’). These regulations are key pillars of the European Digital Strategy, under which other proposals, such as the Data Act and AI Act, are currently being negotiated in the European institutions.

This new CERRE report, authored by Laura Edelson (New York University), Inge Graef (Tilburg University), and Filippo Lancieri (ETH Zurich) takes stock of the 54 algorithmic transparency and data sharing obligations that are present in the DMA and DSA, develops a seven-step test which can help all parties consider specific data-sharing requests and implement data access provisions, and identifies what principles should guide the balancing of potential conflicts between data access and privacy, IP rights, and rule of law, among others.

This framework is illustrated through three case studies: access to online advertisement databases (Article 39 of the DSA), access to data for vetted researchers (Article 40(4) of the DSA), and sharing of click and query data between search engines (Article 6(11) of the DMA).

In addition to the above algorithmic transparency and data-sharing obligations in the DMA and DSA, this report also looks at obligations relating to transparency and data access in the European Commission’s AI and Data Act proposals which are currently being negotiated.

Faced with complex legislation, this report proposes specific categories and variables which help to rationalise transparency and data-sharing obligations, even in forthcoming legislation, and which help to facilitate potential discussions around conflicts and harmonisations between different rules which overlap across digital markets.

The project, within the framework of which this report has been prepared, received the support and/or input of the following CERRE member organisations: OFCOM, ARCOM, Google, Booking.com, and TikTok. However, they bear no responsibility for the contents of this report. The views expressed in this CERRE report are attributable only to the authors in a personal capacity and not to any
institution with which they are associated. In addition, they do not necessarily correspond either to those of CERRE, or of any sponsor or of members of CERRE.
As provided for in CERRE's bylaws and procedural rules from its “Transparency & Independence Policy”, all CERRE research projects and reports are completed in accordance with the strictest academic independence.