Edinburgh presentation on Internet co-regulation 2010

8/8/2019 Edinburgh presentation on Internet co-regulation 2010

1/29

Polycentric or eccentric

regulation? Coregulationof the Internet

SCRIPT Seminar22 October 2010

Edinburgh


2/29

Crisis? What crisis? Internet has 2b users

2b more accessing via 3G by 2014

Mobile has 5m users Cost of access dropping fast:

Laptops and PCs ($100 laptop reality)

Operating systems esp. Linux Mobile handsets (camera,radio,MP3player)

WiFi +Bluetooth(1.3B Bluetooth, 1B+ WiFi)

International connectivity fibre costs


3/29

Internet: 2billion already, 3G 1b


4/29

Changing environment

Economic (etc.) environment increasingly complexemergence, synchronisation, spillovers

Tendency to respond with incremental, reactivetinkering; selected subsets of

Issues Alternatives Consequences

Policy must anticipate (if not lead) rapid changes Induced complexity globalisation, policy linkage,

(overlapping) multistakeholderism Examples; Regulate at one place to achieve impacts elsewhere (ISPs

encouraged to enforce IPR) Potential rebounds (cornering spectrum rights to dominate

spectrum trading markets, deter entry by rival technologies)

Impact of e.g. financial market complexity, volatility4


5/29

EU Objective: innovation while

upholding human rightsProtection of fundamental rights:

in cases (e.g. INHOPE, IWF),

in analysis (advantages, disadvantages and risks) and

in general criteria and principles e.g.

Multistakeholder participation as protection

Liability

Public intervention where failure perceived Monitoring and oversight

Smart regulation


6/29

Polycentric regulation Julia Black

Constructing and Contesting Legitimacy andAccountability in Polycentric Regulatory Regimes

LSE Legal Studies Working Paper No. 2/2008

Decentred

Networked governance

Non-hierarchical Voluntary often


7/29

Legitimacy and accountability L&A of polycentric regulatory regimes,

particularly at the transnational level

dynamics of accountability and legitimacyrelationships,

how regulators respond to them.

institutional environment in legitimacy,

dialectical nature of relationships


8/29

How regulators build legitimacy design accountability relationships or

seeking to build them on the ground.

'how to' proposals risk being pipe dreams:

diverting, but making little difference.

Sounds like Internet governance!

But were coming down the tunnel from theother direction self-regulation


9/29

Baldwin and Black (2010) Really Responsive Risk-Based Regulation

Law & Policy, Vol. 32,2, pp.181-213

Julia Black (2010) Managing the FinancialCrisis The Constitutional Dimension

LSE Legal Studies Working Paper No. 12/2010


10/29

Self- and co-regulation to complement,

substitute or forestall formal regulation

Uneasy partners, impure motives both sides

Advantages and disadvantages compared to

formal regulation but inevitability as well Evolution: agenda creep, waning interest,

Potemkin regulators

(Self-) Regulatory competition

Self-regulation will carry on in any case

Cross market, legal boundaries

Continually rewrite rules10


11/29

The Internet particularly fertile domain for

regulatory innovation

Traditional governance is perceived to have made aseries of failures

Many players have stepped in to deal with them

Self-regulatory organisations have become very active

Developed a rich variety of forms

Engaged an array of disparate stakeholders Tackled a broad range of policy concerns

But their activities are not always coherent or coordinated

Both a problem and an opportunity11


12/29

Governments reassessing regulation

How can government co-exist with thingshappening outside of government?

Should the EU regulate in the Internet domain?

If so, why?

And how should it regulate, given the need toboth

Promote competition and innovation

Protect ublic safet , rivac , and securit ?12


13/29

Defining self- and co-regulation 2003 Inter-institutional Agreement.

2006 Recommendation on Minors

Audio Visual Media Services (AVMS)Directive 2007/65/EC


14/29

Recital 36 AVMS self-regulation constitutes a type of

voluntary initiative,

which enables the economic operators, social

partners, NGOs or associations to adopt common guidelines amongst

themselves and for themselves

Co-regulation gives, in its minimal form,

a legal link between self-regulation and thenational legislator in accordance with thelegal traditions of the Member States.


15/29

Co-regulation should allow for the

possibility for State intervention in theevent of its objectives not being met.

For those actions that require coordinated orjoint implementation by the [EU] institutions,

the inter-institutional agreement provide[scontext]for better regulation.

Its objective is to improve the quality of

Community legislation, its accessibility andits transposition into national law.

The agreement entrenches best practices andsets out new objectives and commitments.


16/29

Co-regulation and self-regulation will not

be applicable where fundamental rights orimportant political options are at stake orin situations where the rules must beapplied in a uniform fashion in all MemberStates.

Under co-regulation... the Parliament andthe Council will have the right to:

suggest amendments to the agreement,

object to its entry into force and, possibly,

ask the Commission to submit a proposal for

a legislative act.


17/29

Monitoring self-regulationAs for self-regulation, the Commission will

keep the legislators informed by reporting

on the practices it regards as effective andsatisfactory in terms ofrepresentativeness.


18/29

Self- and co-regulation hold great possibility as partof regulatory strategy for the Internet

In some cases, they may serve the publicinterest better than statutory regulation

Can achieve results that statute regulation

cannot achieve directly

In other cases, they are best working in

active partnership with governmentregulation

This type of partnership can be extremely

productive if entered into in the right spirit18


19/29

Forms of regulation are also evolving

Traditionally, the dominantforms were formal and

government-led co-regulation

Government legislatesdirectly to achieve economic

and social policy goals

Rules applied (somewhat)uniformly in all MS

Formal(statutory)

regulation

Recognised parties entrusted withachieving legislative goals

Possible government subsidy

Delegated power or governmentenforcement of rules

Co-regulation

(govt-led)

19


20/29

SROs: soft law or no law?

Limited hard power (enforcement) Extend to include Codes of Conduct, or

power to name and shame members. Codes of Practice the approach suggested

in Recommendation 98/560 as amended in

2006, E-Commerce Dir. for Notice-Takedown

Recommendation 20 December 2006 on theprotection of minors and human dignity

(2006/952/EC) OJ L 378 27.12.2006 p. 72.


21/29

Millwood-Hargrave Diagram of

SROs, regulatory type & structure

Self-

Regulation

Statutory

Regulation

Main

Incentiveto Service

Provider

Service

Provider

Unilateralcode

Brand

Self-interest

Industrycode

Industry

Assoc.

Industry

Self-interest

Code

Guardian

Self Regulation

Independent

Body

Approvedcode

Threat of

sanctions

Co-Regulation

Statute

backed code

Govt.

appointed

Threat of

regulatory

intervention

Statutory Regulation

Generic Regulation: Trading Standards + Competition

Self-

Regulation

Statutory

Regulation

Main

Incentiveto Service

Provider

Service

Provider

Unilateralcode

Brand

Self-interest

Industrycode

Industry

Assoc.

Industry

Self-interest

Guardian

Self Regulation

Independent

Body

Approvedcode

Threat of

sanctions

Co-Regulation

Statute

backed code

Govt.

appointed

Threat of

regulatory

intervention



Self-

Regulation

Statutory

Regulation

Main

Incentiveto Service

Provider

Service

Provider

Unilateralcode

Brand

Self-interest

Industrycode

Industry

Assoc.

Industry

Self-interest

Code

Guardian

Self Regulation

Independent

Body

Approvedcode

Threat of

sanctions

Co-Regulation

Statute

backed code

Govt.

appointed

Threat of

regulatory

intervention



Self-

Regulation

Statutory

Regulation

Main

Incentiveto Service

Provider

Service

Provider

Unilateralcode

Brand

Self-interest

Industrycode

Industry

Assoc.

Industry

Self-interest

Guardian

Self Regulation

Independent

Body

Approvedcode

Threat of

sanctions

Co-Regulation

Statute

backed code

Govt.

appointed

Threat of

regulatory

intervention




22/29

Scale Regulatory scheme SelfCo Government involvement

0 Pure unenforced self-regulation

CreativeCommons

SecondLife

Informal interchange only evolving partialindustry forum building on players own terms

1 Acknowledged self-

regulation

ATVOD Discussion, but no formal recognition/approval

2 Post-facto standardisedself-regulation

W3C# Later approval of standards

3 Standardised self-regulation

IETF Formal approval of standards

4 Discussed self-regulation IMCB Prior principled informal discussion, but nosanction/approval/process audit

5 Recognised self-regulation

ISPA Recognition of body informal policy role

6 Co-founded self-regulation

FOSI# Prior negotiation of body no outcome role

7 Sanctioned self-regulation

PEGI#

Euro mobile

Recognition of body formal policy role (contactcommittee/process)

8 Approved self-regulation Hotline# Prior principled less formal discussion with

government with recognition/approval

9 Approved compulsory co-regulation

KJM#

ICANN

Prior principled discussion with government withsanction/approval/process audit

10 Scrutinised co-regulation NICAM# As 9, with annual budget/process approval

11 Independent body (withstakeholder forum)

ICSTIS# Government imposed and co-regulated withtaxation/compulsory levy


23/29

User-generated regulation or

self-organisationDirection of travel in XROs towards more co-regulation counteracted by user-generated self-organisation?

ability to report abuse or switch between applications and

services (e.g. social networking sites, virtual worlds) heightened by new technologies and applications.

Governments monitoring or background view. ability of users to increase the efficacy of existing

(formal, self- or co-)regulation is enhanced Governments monitoring new developments while

maintaining or even ramping down formal regulation.


24/29

Converging on co-regulation!1. Due to legal and procedural pressures

2. Matched with lack of government expertise

3. & consumerist pressure for representation

Comes from both directions

From self-regulation with no formal contact

From regulation with entrenched (and captured?) bureaucracy


25/29

Regulation 2.0

Movement towards formally recognized self- and co-regulation,

backed by audits to ensure that XROs adequately enforce rules, reform their activities and

represent the interests of all stakeholders. For example, movements towards this can be seen in a

social networking Bill of Rights.


26/29

Delegation of powers to XROs Financial and/or administrative support, and

supporting XRO membership

(e.g. by endorsing XRO-generated standardsfor public procurement or standards evidenceof regulatory compliance).

It would be likely to involve government officials in policy and/or

implementation fora, as with PEGI Online ICANN model? Nominet?


27/29

Legislation 2.0More co-regulatory or even formal regulatory pattern.Without EU harmonisation, there could be potentially

diverging national outcomes in such areas as: Internet video, suicide sites, social networking, copyright,

privacy, personal Internet security, etc.

Note E-Commerce Directive, the common EC legal basisin liability of content providers (hosts not Internet ServiceProviders; ISPs)


28/29

Constitutional implications1. Explicit division of powers between XRO andgovernment in some domains, or

2. Separation of decision-making, monitoring,reporting, enforcement

3. Implicit enforcement support;4. Affirmative criteria for supporting exogenous or

autonomously arising XRO proposals1. with resources, information, regulatory forbearance,

delegated or agency enforcement power5. Negative criteria for restricting, supplanting or

pre-empting XROs1. e.g. on competition policy, single market grounds


29/29

Judicial review of XROs? Liability under HRA 1998?

Campbell v. MGN route?

Performing public functions?

Judicial activism required!

Edinburgh presentation on Internet co-regulation 2010

Documents