, Episode

Erika Mann MEP discusses the eCommerce Directive

Interview by
July 1, 2020

In this episode...

In the late 1990s, when in public office, Erika Mann led the drafting efforts behind the European Union's eCommerce Directive. This directive is still in force as the legal framework for online services in the European Union's internal market. Two decades later, POWER PLAY's Ayden Férdeline asks Erika Mann if the law is still fit for purpose today.

Erika Mann

Erika Mann was a Member of the European Parliament for Germany from 1994 to 2009. She is now a senior advisor at Covington.


Narrator: [00:00:04] You're listening to POWER PLAYS: the podcast charting how important decisions about the Internet, its infrastructure and its institutions, have been made. Here's your host, Ayden Férdeline.

Ayden Férdeline [00:00:29] Welcome to POWER PLAYS, I'm Ayden Férdeline. Today on POWER PLAYS we are joined by Erica Mann. Erica Mann was a member of the European Parliament for Germany from 1994 to 2009. She led Facebook's presence in Brussels until the end of 2015, and she is now a senior adviser at Covington. A listener note: We recorded this interview in Montreal in October 2019, and there are some references to what were then current events. Erika Mann, thank you for your time. Can you take me back to the 1990s when you first entered public office?

Erika Mann [00:01:06] It was a very young parliament at the time. So I entered in '94 for Germany, was elected in Germany to the European Parliament. It was a young parliament, not well established, many procedures were not really well-settled at the time. We were even in the building, an older building than the one which is now housing the European Parliament, just opposite from it. So it was a very interesting experience. It changed quickly. So it didn't stay like this. It changed super fast. But at the time when I entered, there was no TV in a room, which is very strange if you are in politics, because you want to see what's going on in media all the time. Didn't exist. The computer - there was no computer system. The only thing which was known was the telephone. Of course, computer were already there, but they have not provided at the time. So we had done this all on our own, at least in my office. We were the first introducing this and quite an experience.

Ayden Férdeline [00:02:11] By quite an experience, do you mean that this was unusual for you? Am I right in understanding that you had a background in technology before you entered the European Parliament?

Erika Mann [00:02:23] I had a background. I wouldn't say I had a background in technologies, but I always worked in the technology field. So I was one of the person which had the first computer. You can't even call it a computer. It was at the time a big heavy, which I bought secondhand from a big media company, a big machine, IBM machine. So you can't even call it really what we call nowadays a computer. It was a computer, but of course not what we are used. So when I bought this very early already in '80, must have been '85, '86, super heavy machine. And yeah. But people were not used to it. So when I joined the Parliament in '94, people were not used to it. And we did. We bought, I can't even remember which computer we bought anymore, I may still have it somewhere in a cellar. I can't remember, but we did this. We bought a TV. We hijacked the, we had an electrician coming in, hijacking the systems so that we could have TV, and the Parliament and we were the first too, and then people followed later.

Ayden Férdeline [00:03:32] When you think back to your time in the European Parliament, what is one of your biggest achievements? Is there something in particular that you are proud to have accomplished?

Erika Mann [00:03:45] It's hard to say, I mean, I was, I'm very well known in the trade field because I covered, it was the time when the European Union, like the US and many other countries in the world, started to explore how they can negotiate international trade agreements. Of course, the system was established much earlier, but that's when it really, you know, came into force. So I was the spokesperson and it was something I worked on for many years. And I was the first promoting a trans-Atlantic agreement between Europe and the United States. Trade agreement. It still doesn't exist. It's still under negotiations, which is crazy, if you consider we are living in 2019 and we don't have an official trade agreement between us. So we are based on what is negotiated in the World Trade one, which is fine, but since the traditional systems, the way trade agreements were negotiated in the past was the belief you negotiate multi, you negotiate agreements which are, you know, all of the World Trade Organisation pretty much sign up to it. There are variations to it, but that's what's the basic belief. Now, most agreements are negotiated in bilateral terms, so which are very different in nature. So that's what I think. I wouldn't call it proud about it. I'm not proud about these kind of things, but it's a work I loved and I'm well known for. And then, of course, many in the Internet world, I mean, I was one of the first in the parliament being known for laws which either governed the telecom environment because at the time when I joined it was primarily telecom environment and then much later, it embraced the Internet world as well. So many laws which relate to the Internet world I'm quite well-known about.

Ayden Férdeline [00:05:41] I want to focus on one of those laws that touch upon the Internet, and which you were directly responsible for. Am I correct that you were the rapporteur for the eCommerce directive adopted in 2000?

Erika Mann [00:05:56] Good question. I don't know if I was the rapporteur. I would have to. It's such a long time ago, but I did big parts of the drafting of it, yes. In the parliament. Yeah. Could have been shadow rapporteur or rapporteur-something. I don't keep track of these kind of things.

Ayden Férdeline [00:06:13] What do you remember about the events that led up to the adoption of the eCommerce directive? I mean, this was two decades ago. Was it intuitively obvious to people that this legislation was necessary?

Erika Mann [00:06:29] I mean, it is very simple, when you look at the how the European Union is designed. It's an agreement between many different member states. But changed over time. The composition of the member states, now 28, in some months, the UK if it is leaving, if they're ever leaving, 27. So you can imagine that, of course, the design changes. And what is called in the European Union, the digital single market concept or before the digital single market, the single market, this idea that you open borders and that you have no custom, no custom in the real world, no custom online. That's something you have to design. It doesn't exist because I mean, if you bring so many countries together, of course, you have borders, you have real borders and you have digital borders. So you have to take them away. And that's the concept of the digital market. And the e-commerce was the first actually to start working on this concept before, I mean, the digital market was still very, you know, was not even well-designed at the time. One has to be you have to recognise this.

Ayden Férdeline [00:07:47] At the time, how difficult was it in Brussels garnering traction for this idea of a digital single market?

Erika Mann [00:07:54] It wasn't very difficult at all because people were aware, politicians and even ordinary citizens, everybody was aware that that's something you need if you want to buy across borders if you want to. Even if you don't want to buy it. But if you're just interested in and things which are going on cross-border, you want to know. And you need to have a frictionless environment. If there are certain frictions, it's much, much it's still difficult. I mean, you wouldn't believe it if you would look at how many people are buying cross-border, EU-wide, not talking globally, just between European member states. It's still very difficult. The numbers are still low. I believe there around 20 percent now which is very, very low. And sellers are even lower. So the numbers are very low. Of course, it's primarily because of languages. There's no uniform European language you can use on people, which are used just to their domestic language. It becomes very difficult and burdensome. The contracts are difficult. They are often designed and follow national obligations and national law. So it's a complex environment. But people didn't know that that's what is needed. You can't continue like this. And then, keep in mind at the time, if you want to buy something, in particular digital goods, it's important or you want to download something or you want to work with a digital good, it was important for the hosting providers to be exempted from certain obligations, particularly in copyright environment. But in other environments too, because if you would put on obligations to hosting providers, it becomes super hard for them actually to deliver the service to users and to customers.

Ayden Férdeline [00:09:51] So, intermediary liability?

Erika Mann [00:09:54] Intermediary liability. Or in the traditional term we used, that was a 'mere conduit.' So everything which was sent and which were not obligations of the hosting providers were not automatically obvious.

Ayden Férdeline [00:10:11] So I imagine that the best drafting choices were made given the political constraints around the time of the e-commerce directive. But with the benefit of hindsight, do you think it ever achieved all of the objectives that you just outlined?

Erika Mann [00:10:28] Absolutely. Absolutely. Without this provision, without the exemption on liability, it would have been impossible to develop an electronic market. Completely impossible. It would have never worked. And I still believe that's true for the future too. Now you'll have obligations, of course, on on platforms, or hosting providers, so if they are notified about a case, either copyright or other kind of fraudulent cases, you need to have on the other side procedures installed, which are called notice and takedown. Definitely you need this. And there's an obligation, then, to take down these kind of things. And there are often negotiations going on between media companies and between platforms or hosting providers, you know, to go after cases which are clearly fraudulent. But if you would not have these kinds of exemption, you would not have such a big market. And that's not true just in Europe, but that's true globally.

Ayden Férdeline [00:11:34] So, assuming that the e-commerce directive has been successful, like you've just outlined, are there any aspects of it that need to be modernized, do you think? If you think of some of the new business models and technologies that have emerged in the two decades since the e-commerce directive came into effect, are there any regulatory reforms or legislative changes that are necessary to better enable or to better support these business models and technologies?

Erika Mann [00:12:06] I'm very doubtful that much needs to be changed in the e-commerce directive. I think it is still a good law. Now, it's always good to review laws after, in particular, after such a long time, it is good to do it. And maybe it's because of another reason. Good. Because in the meantime, so many laws came into place in Europe and in the European Union, which took away some of the freedom which were installed in the past. Take, for example, the copyright law which kicked in last year. So that's actually not last year. It was actually the beginning of this year, 2019. So that's a law which takes away a certain part of the liability exemption related to particular parts in the way the new law is drafted, the new copyright law is drafted. In so far yes, one needs to review it. But is it needed to change the tone with regard to the exemption of limitation? I'm doubtful about this. If I would be still a legislator, I wouldn't do it.

Ayden Férdeline [00:13:20] What about other laws and regulations that have emerged in the European Union that impact technology companies? What do you think about the General Data Protection Regulation, for example? Has that hindered the environment for tech companies in any way?

Erika Mann [00:13:37] It's a complex picture. Big companies can deal with it. They can handle it so that it's not really destroying their business model. It's much harder for smaller companies. It's much more difficult for pioneering companies, in particular companies which are operating in a market segment which relies on data and relies on personalized data. You can imagine if you want to build a system in the health environment, for example, under similar environments, you need data. And you need historical data too. So it's not helpful to say that, you know, data set shall be as narrowly defined as possible. They shall be small on day, shall not be sustainable historically, which is very difficult in the health environment, because most of the knowledge you gain is over a longer period of time in developing a medicine. So it's a complex law for specific environments. So I'm doubtful that it is a smart law in the sense that it will sustain new business. Development of new business models in the European Union. It might be actually hindering it. Is it otherwise a good law? I think it is a good law in the sense that it's looking at personal data in a much more protective way, which is for an individual, under certain conditions, good. Depends on the individual. And the individual has more rights, of course, to protect its personal environment, which is in principle a good idea. And as long as it can be balanced and allowing new innovative business models evolving, it is in principle not a bad approach.

Ayden Férdeline [00:15:32] What do you think of other laws and regulations that are being developed at the moment at the European level? Are there any that give you pause or excitement?

Erika Mann [00:15:42] I mean, there's so many in the moment. It is really such a diverse picture in particular when you keep in mind there's a new European Commission, which has not even entered, you know, not officially. Still operating because of politics. So we will not have the new commissioner, probably not before the beginning of next year, 2020. The parliament is in power, but still the parliament is occupied with many, many different issues. But the signals you receive is more protection. It's a revival of old ideas like, for example, a greater sovereign space in the digital environment online, which everybody knows. That's a really, really tough concept and typically Western society at least argued against that. And not just Western societies, many other societies too, because we had to believe you want to have an open Internet, which is by nature, as global and international as possible. As soon as you introduce national sovereign concepts it becomes very hard. You move back to practically to the world of the 19th century. It's a hard concept. And so we have to wait, you know, how this will shape out. And then, of course, there's a many new laws introduced very early. You know, what kind of platform regulation? You know, we may see emerging. There are new ideas about antitrust issues, there are new ideas about what the Commission calls a Digital Service Act. So there are many new concepts evolving, how to regulate the sector. And I'm not so sure if this is a smart idea in particular, because in Europe, the digital single market is not even working well. It is still fragmented primarily in national sectors and national environments. So why would you already want to worry so much about regulation if you have not even embraced it fully? It looks too early to me.

Ayden Férdeline [00:18:01] Is regulation a panacea for a lot of the problems that have been flagged about the impact of the Internet on society? Can regulation solve these issues?

Erika Mann [00:18:12] No. Regulation can't solve these kind of issues. Hardly ever. When you look back into tech history, you will not find many examples that regulation solves society's problem. It's practically not possible. And I wouldn't, I would have to do a long investigation maybe to find a good example. But one can do is to set good standards, to set good principles. This is much more helpful and then hope that society is able to manage the negative side of technology like we are able to manage the negative side of our real world, too. I mean, you know, you learn to walk a dark street, you learn to walk dark areas in your own city, and you teach your children and you teach them how to do this and to survive and somehow similar principles. You know, you need in the digital world, too. You know what to avoid. You know how to deal with dark areas on the Internet. So regulation is typically not the best instrument for this.

Ayden Férdeline [00:19:24] Does technology excite you? Does it scare you in any way?

Erika Mann [00:19:29] No, it never scared me. It only excites me. Only I wouldn't know what would scare me on the Internet. Definitely not. And I'm always an early adopter of all technologies, so I'm not a late adopter. I do it very early. I like technology. I love technology. And I never experienced it. You know, I wouldn't say I never experienced a truly dark side, but I believe I can and I know how to deal with it. But that's true in the real world, too, the most scary stuff is the real world. It is not what happens online.

Ayden Férdeline [00:20:07] What technologies have recently emerged that excite you?

Erika Mann [00:20:13] I mean, I'm very excited about what artificial, what is called artificial intelligence, can deliver one day. I'm super excited about it. I am. I love the virtual world. I love artificial intelligence. I love virtual reality. Augmented reality. I love to see how the gaming world is evolving. So I'm I'm excited about this. I'm not frightened about it. I believe when you look again, when you look back in to tech history, mankind was always worried about taking the next step. It doesn't matter what it was. But when you read about, you know, the introduction of the railway system, the telephone system, the airline. Mankind was always worried about that the world would collapse, that mankind is not going to be able to handle it. And it's true, there are always aspects which are frightening. If you imagine, you know, you sit in this tin box in the air and there it flies and you are sitting. And of course, it is frightening. You never imagine how frightening it is. But it is frightening. The same in the train or you're driving fast in the car. Super frightening. But, you know, you learn to adapt to it. And I believe the same is going to happen in the artificial intelligence environment. Even if you look at the most extreme scenarios some people are sketching out, some scientists are sketching out, and you will see, you know, real true artificial intelligence emerging. We're not there yet. All what we are seeing evolving has nothing to do with true intelligence. But if it does, why should it be frightening? Why shouldn't we be able, you know, to embrace us and to find a way in working with it? So, no, I'm not worried about it. Quite the opposite.

Ayden Férdeline [00:22:10] If we go back a few years, back to your time in office, I'm wondering what it was like as a woman in the '90s in public office?

Erika Mann [00:22:19] I never recognised this. I find the whole women and men issue gender debate pretty boring I must tell you. I understand it's important to talk about it and to make space for whatever you want to make space in a society. Whoever is occupying space too much, one needs to talk about it so that you have a balance, because the balance aspect is important for our society because we all have different but you know, different perspectives. But that's true for all nationalities as well. That's true for race aspects. So otherwise I never felt disadvantaged. And if I would have been, I wouldn't have accepted it.

Ayden Férdeline [00:23:04] Were there any moments, when you were a legislator, that were frightening?

Erika Mann [00:23:09] No, no, never. I mean, the only frightening, but not as a legislator. The only frightening situation I ever truly, truly frightening I ever experienced was when I was in the, actually as a legislator, in the attack in Mumbai in 2008. And I was in the Taj Hotel. And they attacked the Taj, the Oberoi and the railway station and a Jewish centre. I mean, this was a frightening situation, but this was the only one.

Ayden Férdeline [00:23:46] And after this incident, did you become more risk conscious or you already were?

Erika Mann [00:23:52] In a pragmatic sense, yes. I was never frightened. I never had a bad dream, although the group where we stayed in, we probably in the most threatened, you know, situation. But I never had a bad situation afterwards or a bad dream. I'm more conscious. So I will check exit places. I will check that they are working, that the doors are not closed in a hotel, for example. I will check if similar situations can occur in an airport. So I'm a little bit more conscious, but I'm not afraid.

Ayden Férdeline [00:24:30] It can sometimes be difficult to think back about our own successes. But I'm curious, when you think back of your own career, Erika, not just in politics, but more broadly, what do you think has been your biggest contribution to society?

Erika Mann [00:24:48] I mean, when you look back in the in my time as as a legislator, I truly believe that I was one of the person opening the mind of my colleagues and the mind of people in general that an open trading environment is good. An open Internet is a good concept. I was advocating for it. And at the time there were not many not too many legislators doing this. So I believe I was very successful in promoting this concept and this idea. And many followed because I was taking the lead on these kind of issues. And so I think I was very successful in this sense, yes.

Ayden Férdeline [00:25:30] Do you worry that this concept of a free, global, interoperable, open Internet - something that you fought so much of your career for - is now under attack?

Erika Mann [00:25:42] Yes and no. It is under attack if we are relieving the world of commerce. The world of commerce is still very much driven by this idea, which is good because the commerce is always the first environment.If you can open the commerce world and you can establish trading relations and commercial relations, that's where typically the connections are made first. This is, by the way, not a new concept. I mean, we do have spices because monks travelled in the past and bought these kinds of, you know, goods back to people and people developed and desired to understand more about different cultures and wanted to hear, you know, what how these world look like. So it's not a new concept. So as long as you have this idea in the commercial world, I believe we are pretty safe. So there will be always a desire. And again, it's not new to neither to shut down ideas which are more virtual, to shut down more these kinds of ideas, not to allow people, you know, to trade political ideas freely or not to allow peoples to deal with difficult agenda concepts freely. So that's where you first feel, you know, the desire from certain governments to shut down the Internet in particular for particular purposes of. But, you know, circulating particular ideas. As long as the trade world stays open, I'm less worried about it because I believe people then will find a way, you know, still to find access to these ideas. As soon as you shut borders, you recreate too difficult customs procedures. You don't allow people to travel. That's where it becomes really difficult. Otherwise, I would see what we what we currently experience. The idea to censor the Internet. The idea to establish national sovereignty. The idea to monitor what people are doing. I see it more as an you know, as something which would pass. It might not stay. It might not survive. Hopefully it will not survive. But once it touches the real world, it becomes really a dangerous path.

Ayden Férdeline [00:28:11] Something I'm curious about on a personal level is, you've been a legislator and you've been a lobbyist, so you've probably seen different actors employ quite a wide range of tactics to communicate messages. I'm wondering if there are any particularly useful tactics that you've seen, tactics that have helped to successfully influence the policy agenda. Are there any useful tactics or even counterproductive tactics that come to mind?

Erika Mann [00:28:41] Yeah, you raise a very good point, something which I'm really occupied with understanding it. And I believe you need different approaches to even to be able to understand what we want to understand. So I have seen my colleagues in the European Parliament, when I was still a member. And just to give you one example, the Brexit discussion evolved.

Something very interesting happened. And what I observed was that the opposition to the established political system was the one which where they were using the social media, for example, much earlier than the traditional parties, the mainstream party. Which is natural because they were not they they traditional media was not. You're not talking about as much as they wanted to be talked about. So they had to look for new avenues, how they can circulate their ideas. And social media was one used very, very early. And I believe when you look at how politicians now try to ban certain political speech on the Internet or in particular on social media platforms, I believe they overlook they overlook or they focus on a too narrow set of problematic topics which are more, in the past we would have called them propaganda, so less advocating for your political agenda, but more, you know, promoting ideas which can be can be sometimes conflictual to your to the society as a whole. But they overlook? What they completely overlook, that of course if you are not part of the mainstream in, let me take the example of the European Union, then of course, it's much harder for you to ensure that your ideas are to be heard, because typically the way the system functions, there's a connection between media, established media and established political systems.

Which means that they are able to circulate ideas. But you're outside of a political system. It's very hard for you to be heard. So of course, then these more fringe parties or fringe groups, they will use whatever they can use. And then, of course, to come in from a traditional perspective and to argue against them because either they may use propaganda or it may look to you as it is propaganda, but for them, maybe it is not propaganda. So you touch on freedom of speech issues and this fear, which I believe is very, very problematic. And you see this in their discussion at the moment. Mark Zuckerberg is having about, you know, what kind of content shall be taken down? What kind of political content shall stay up on Facebook? It's a super fascinating discussion. And I don't think there's a simple answer to it.

But what you definitely can't do, you can't look at it only from the perspective of mainstream politics. Then you practically create a censored Internet and you don't want this.

Ayden Férdeline [00:32:10] Just one more question and I'll let you go. I wanted to touch upon what you just mentioned there, the harm in a censored Internet. We're seeing increasingly that European laws have extraterritorial effect. Do you think this is a good trend? Should Europe be taking a leadership role in trying to regulate different aspects of the Internet? If Europe did not, would someone else step in? And I'm curious about what you think the Internet of tomorrow is going to look like, particularly given the direction and trajectory of some proposals that are coming out of Brussels.

Erika Mann [00:32:47] So, when I joined the parliament, the European Union was arguing against extraterritorial laws all the time. At the time, these kinds of laws came primarily from the United States. They then themselves stepped into designing laws which have an extraterritorial effect, now you can't completely avoid this in the Internet. One has to be cautious. So once you do a law like the GDPR, it's nearly impossible to avoid extraterritorial effects. In principle, I don't think it's a smart idea. One has to be super careful how to do it.

And I believe when you look back how the design, how the law was written. So in a typical law, what you would do and this is what GDPR did as well. And so one has to be a little bit careful with the idea that it was designed to create extraterritorial impacts. It wasn't designed actually to do it. But once it was created, it had such kind of effect. But there is one other aspect you have to look into. What you typically do, you create the law and then you see that it's not fully functioning on a global scale. And this was true for the GDPR too. And then you sign agreements with other countries and these kinds of agreements, and this is what the European Union did, they vary. So if you have a very trusted environment, you can go further than you can go compared to a country where you don't have such a trusted environment and concerning data protection. So that's what the European Union actually did. These are called adequacy agreements and we are very used to them in the standard environment, much more, where we rely for example, in the technical environment, we are going actually quite far in accepting standards and the design of a machine, which is not always following the identical standard. But you have a certification that the standard is as good. And the technical implementation is as good as what you are used in your home country. So something similar the European Union did. But of course it's not perfect. Now then the discussion came up. Can you trust the data which is shipped, electronically shipped, to another country? Is it OK that the data is stored in another country? So it's a never ending dispute and discussion you have. And I don't, in principle, I don't think so it's a good path. I mean, you need to trust your partners. You need to trust that they've stored the data safely. Once you have such kind of agreements and you can continue to question the reliability of their systems all the time. Otherwise, you end up in a complete international mess.

Ayden Férdeline [00:35:57] Erika Mann, thank you very much.

Erika Mann [00:35:59] Pleasure.

Ayden Férdeline [00:36:00] I'm Ayden Férdeline and that concludes our interview with Erika Mann, a Member of the European Parliament from 1994 to 2009. Next time on POWER PLAYS we speak with Stephanie Perrin, who was responsible for drafting Canada's private-sector privacy law PIPEDA.

Narrator [00:36:01] This has been POWER PLAYS, the podcast that takes you inside the rooms and into the minds of the decision makers responsible for some of the most instrumental decisions that helped shape the Internet, which we all use today. If you'd like to help us spread the word, please give us a five-star review and tell your friends to subscribe. We're available on every major listening app as well as at POWERPLAYS.XYZ.

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