Digital Markets Act: Requiring Interoperability for “Gatekeeper” Messaging Service Providers

The Council of the European Union (“EU”) and the EU Parliament recently reached agreement on the Digital Markets Act (“DMA”).

The agreement contains several changes from the European Commission’s (“EC”) proposed DMA, including changes to the definition of “core platform services” and raising the thresholds for identifying a “gatekeeper,” among other modifications. Further, the agreement indicates that the final text of the DMA will require interoperability for messaging services.

The thresholds for identifying a “gatekeeper” will increase from the EC’s proposal of €6.5 billion in annual revenue and market capitalization of €65 billion to €7.5 billion in annual revenue and market capitalization of €75 billion. Additionally, a “gatekeeper” will need to have at least 45 million monthly end users and 10,000 yearly business users.

If an organization meets the threshold for a “gatekeeper,” it also will be required to enable interoperability between instant messaging services. Specifically, a “gatekeeper” will be required to open up and interoperate with a smaller messaging app if requested by the smaller app. Interoperability of instant messaging would allow users to send and receive instant messages without regard to which messaging app is being used. For example, a large messaging app such as WhatsApp may be required to open up and allow user-to-user messages to and from a smaller messaging app—thus, not all users will have to have accounts on WhatsApp in order to instant message each other.

Requiring interoperability may result in further entry and competition from smaller messaging apps. However, there are some concerns on how interoperability will work and whether it will affect user privacy. Messaging apps use end-to-end encryption for security and privacy. Different messaging apps use different forms of encryption, and current forms of end-to-end encryption generally expect users to be using the same messaging app. Additionally, some features, such as spam detection software, may not function properly if messages are shared across different apps. “Gatekeeper” messaging apps will need to address these concerns as they move forward with meeting interoperability requirements.

The EU appears to recognize these technical difficulties and expects interoperability to begin first with basic individual messaging. Group messaging will follow later, and there currently is no requirement for interoperability for social media services. The tradeoffs between competition and privacy will depend on how well “gatekeeper” messaging apps are able to address the technical difficulties of bridging the different forms of encryption used by smaller messaging apps.