Internet Liability Law Case Study: Private Regulation and Enforcement in the EU from the Citizens’ Perspective

Abstract

The internet is an interactive communications medium based on a network of networks (about 50,000 autonomous systems) of global reach. Because binary digital code can be used to transport and assemble complex artefacts via the Internet Protocol (IP – after which the internet is named), it can be considered the ‘medium of media’ – many formerly separate communications media are converging on the internet, including newspapers, television and radio, text-based information such as books and journals, and photography. Because the medium is interactive, it has increasingly been used for business – and consumer electronic commerce (e-commerce) – with huge implications for governance. It is the largest repository of human knowledge and information ever assembled. This chapter sets out the directions in which researchers can explore the regulation by and of private actors on the internet. It sets out to answer the case study research questions, grouped as follows. 1. What role has been exactly assigned to or been taken up by what private actors in the regulation and/or enforcement of what issue or problem? 2. What are the reasons or incentives underlying this preference for private regulation or enforcement over public law arrangements or for involving private actors in such arrangements? 3. What goals do such arrangements strive after and how realistic/achievable are these? 4. How ambitious can such arrangements be; what can be realistically expected from private actors? 5. In the case of hybrid arrangements, what is the exact nature of the private/public relation? 6. Do the internet self- and co-regulatory arrangements have a legal foundation, and are specific legal constraints or conditions to be respected? These six are the focus of sections 2 and 3. Section 2 explains the involvement of private actors in internet regulation, notably through co-regulation. The typology of co-regulation may be very familiar to some readers, who may proceed to their evaluation in section 3. The focus of section 4 is the main outstanding research question: how can private or public/private arrangements be regulated with a view to ensuring: • more/sufficient trust and credibility with citizens and stakeholders and the prevention of capture; • ‘internalisation’ of the set rules and therewith support and compliance; • flexibility and evaluation so as to ensure also long-term benefits of self- and co-regulation over public regulation? In this final research question, the interplay between European and national law and policy is a constant concern in such a potentially global sector. Co-regulation has been the dominant legal arrangement for the internet in Europe, and I explore in some depth the implications of co-regulation by corporations such as Google in Europe. I focus on the case study of intermediary liability, in which private enforcement of law is severely challenged by concerns regarding too little liability for privacy and free speech rights. Networks that depart from neutrality to influence individual Internet users’ speech rights (notably the right to receive information free of censorship) can only do so having already invaded their privacy rights in ascertaining how those users access the internet. Within these new arrangements, we must then consider what balancing or trade-offs between public and private interests, also vis-a-vis effectiveness concerns, would such organisation or regulation imply? In section 4, I explain that digital information policy is critically concerned with relationships between existing government–industry actors and ‘prosumer’ groups (ie producers and consumers), whose role in production, distribution and consumption is growing rapidly, and whose motivations and activism are often non-monetary. This is seen as requiring a more sophisticated interdisciplinary method for assessing contributions, motivations and sustainability of the ‘prosumer economy’, the growth of the virtual polity and social communities online, and a new prosumer law and policy to govern the regulation of the digital information ecology. This calls for a new form of consumer and citizen protection, which I term ‘prosumer law’. I explain its application in social networking regulation to conclude the section. In the concluding section 5, I argue that internet regulation’s specialisation in Europe, and the failure of mainstream regulation and competition law to fully absorb the insights of that scholarship, has led to tension. I further propose that the debate surrounding nudges and privacy affecting competition outcomes has yet to reinvent the 1990s wheel of nudge limitations. Prosumers can only affect outcomes at the margins, while it is private enforcement that really creates a transnational internet law and shapes the regulatory environment. Learning more internet regulatory history can help competition and regulation scholars herald and shape the arrival of prosumer law.