INTERNET CO-REGULATION AND CONSTITUTIONALISM

BANGKOK 20 DECEMBER 2012PROF. CHRIS MARSDEN

What are the rules of new media game?

Millwood-Hargrave: regulation types

Self-Regulation

Statutory Regulation

MainIncentiveto ServiceProvider

ServiceProvider

Unilateralcode

BrandSelf-interest

Industrycode

IndustryAssoc.

IndustrySelf-interest

CodeGuardian

Self Regulation

IndependentBody

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

MainIncentiveto ServiceProvider

ServiceProvider

Unilateralcode

BrandSelf-interest

Industrycode

IndustryAssoc.

IndustrySelf-interest

Guardian

Self Regulation

IndependentBody

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

MainIncentiveto ServiceProvider

ServiceProvider

Unilateralcode

BrandSelf-interest

Industrycode

IndustryAssoc.

IndustrySelf-interest

CodeGuardian

Self Regulation

IndependentBody

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

MainIncentiveto ServiceProvider

ServiceProvider

Unilateralcode

BrandSelf-interest

Industrycode

IndustryAssoc.

IndustrySelf-interest

Guardian

Self Regulation

IndependentBody

Approvedcode

Threat of sanctions

Co-Regulation

Statute backed code

Govt.appointed

Threat of regulatory

intervention

Statutory Regulation

Generic Regulation: Trading Standards + Competition

‘Soft law’ and self-regulation

• Unique role of European Commission• Legislative initiative• ‘Soft power’s and industry liaison

• EC issues ‘Recommendations’• e.g. Rec[98]460 on protection of minors & dignity• Which lays down ISP self-regulation via Codes• Forerunner to E-Commerce Dir. 2000/31/EC

• Much criticized by E. Parliament and Council• Legitimacy and democratic mandate?

Will competitors play fair?

Does civil society have a role?

• Obviously more interests than industry• Even in case of copyright holders & ISPs

• Multistakeholder-isation• Process not a static model

• Example: ICANN• Authority from Commerce• Government Advisory Committee• Driven by litigious registrars• Civil society ALAC – observed in the breach?

User-generated regulation or ‘self-organisation’Governments monitoring or background view. • users increase existing regulation

• Users report abuse or switch between services • (e.g. social networking sites, virtual worlds)• Can you leave Facebook? • Can your data? • Can your friends?

• Governments monitoring new developments • while maintaining formal (de)regulation?

Can self-regulation be camouflaged?

Scale Regulatory scheme Self– Co Government involvement

0 ‘Pure’ unenforced self-regulation

Creative Commons

SecondLife

Informal interchange only – evolving partial industry forum building on players’ own terms

1 Acknowledged self-regulation

ATVOD Discussion, but no formal recognition/approval

2 Post-facto standardised self-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 no sanction/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 (contact committee/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 –with sanction/approval/process audit

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

11 Independent body (with stakeholder forum)

ICSTIS# Government imposed and co-regulated with taxation/compulsory levy

Regulation 2.0: constitutional rights?

Movement towards formally recognized self- and co-regulation, • backed by audits to ensure that XROs • adequately enforce rules, • reform to represent interests of all stakeholders.

• E.g. social networking ‘Bill of Rights’• Facebook under legal action in Europe (Ireland) and United States (FTC)

Tussle space between regulation and co-regulation?

Legislation 2.0

•Co- or formal regulatory pattern. •Without EU harmonisation, •diverging national outcomes in:

• Internet video, suicide sites, • social networking, copyright, privacy, • personal Internet security, etc. • Note E-Commerce Directive

Bring constitutionalism back in?

• Division of powers would audit co-regulation

• Audit role for communications regulator?• E.g. Leveson recommendation on privacy and right to reply in UK newspapers

• Ofcom or judge or Parliament?

• Parliaments and Courts monitoring• UK Royal Charter or legislation?

Delegation of powers to XROs• Financial and/or administrative support, • supporting XRO membership

• e.g. endorsing XRO-generated standards • standards evidence of regulatory compliance

• Example: privacy or defamation – professional training for less liability

• Likely to involve • government officials in policy and/or implementation fora, • as with PEGI Online.

How to make regulation work better

Explicit division of powers between XRO and government or separation of

decision-making, monitoring, reporting, enforcement;1. Implicit enforcement support;

1. Affirmative criteria for supporting XRO 1. (with resources, information, delegated or agency enforcement power);

2. Negative criteria for restricting, supplanting or pre-empting XROs

1. e.g. on competition policy2. Or human rights

How should judge success of rules?

Leveson Inquiry: Co-regulation for newspapers

• Privacy invasion and telephone surveillance (‘hacking’) scandal• Police failed to act after 2006 conviction on continued allegation

2009• 2011 - Lord Justice Leveson: senior judicial inquiry• Reported November 2012: 2000 page report after 14 month inquiry• Legislative changes to political relationship with media

2014 Communications Bill?

• Leveson suggests privacy watchdog • Backed by legislation• Oversight role for committee

• led by Lord Chief Justice? (Labour)• Or by Ofcom auditing Code of Press Standards Trust (Leveson)

• Or more self-regulation• newspapers and Mr Murdoch’s Cameron

UK: Ownership key to media pluralism

• Reflected in 2011-12 News International/Sky• And earlier merger cases• Massive entry barriers

• Can successful policy simply balance BBC and Sky?• Ofcom 2012:

• Advising Minister on ‘fit and proper’ person test• In connection with BSkyB/News Corporation/Murdochs• Decided that Murdochs were ‘fit and proper’• But criticized corporate governance of News Corp.

Recent human rights law• Problem of privatization of censorship• United Nations: Rapporteur Frank LaRue

• Declaration by regional bodies• Inc. Inter-American, Council of Europe etc.

• OECD: Internet governance principles?• ITU: International Telecoms Regulations• UNESCO: no clear principles• OSCE: Akdeniz• ASEAN: ?

Courts’ role in implementing co-regulation• Courts (esp. European Court of Justice)

• balancing property/IP rights against fundamental rights• Free expression, censorship and privacy at stake

• 2012: • Telefonica, Scarlet Extended, Netlog and Perfect AB • very imperfect decisions!

• National courts’ application will adapt – • E.g. UK Cleanfeed cheap and proportionate

• Newzbin/Fox case

• Denmark Code of Conduct as default censorship

Questions?Email: cmars@essex.ac.uk

Extra slides• New media: Defamation and libel

2013: Draft Defamation Bill• Deputy Prime Minister speech:

http://www.guardian.co.uk/law/2011/jan/07/nick-clegg-libel-reform

• Draft Bill published March 2011 • statutory public interest defence • clarify the law around the defences of fair comment, and justification.

• Substantiality Thornton v Telegraph • "threshold of seriousness... exclude trivial claims"

Twitter posts and reposts• Cairns v. Modi (2010)

• Modi was head of richest cricket league• Cairns was a former New Zealand captain• Cairns had played in rival league• Modi claimed on Twitter that Cairns was not allowed to join his

league due to corruption allegations – ‘throwing’ games for gamblers

• Repeated his claims on Cricinfo (ESPN website)• Cairns sued Modi and Cricinfo – latter settled

Cairns v. Modi: trivial Twitter?• [2012] EWHC 756 (QB) (26 March 2012):

• "Mr Ronald Thwaites QC for the Defendant described the case as an example of libel tourism.

• The criticism is misguided. • Claimant went to school in England, as did his children,

• played county cricket in England [over]15 years.

• Defendant since mid-2010 resident in England. • A trial in India would have involved very long delays. • The case is properly before the court in England."

Cairns v. Modi: trivial Twitter?• Court of Appeal on damages

• [2012] EWCA Civ 1382 appeal from [2012] EWHC 483 (QB)

• Australian convenient expression• "the grapevine effect" adopted

• Crampton v Nugawela [1996] NSWSC 651.

Mr Caldecott QC contended that with allegations of this scandalous nature … • “word will "percolate" by way of the Internet• “consequence of modern communication systems • “capacity to "go viral" widely, quickly than ever before. • “availability of the WWW and of social networking sites, • “scale of this problem has been immeasurably enhanced,

especially for libel claimants who are already in the public eye.

• this percolation phenomenon is a legitimate factor to be taken into account in the assessment of damages."

Cairns v Modi [2012] EWHC 756 (QB) (26 March 2012) per Bean J.

• 65 viewers of ‘Tweet’ – but how many retweets etc.?• "although publication was limited, that does not mean that

damages should be reduced to trivial amounts. • “In 1935, long before the internet was thought of,

• “L. Atkin in Ley v Hamilton (153 L.T. 384, cited by L. Reid in Broome v Cassell [1972] AC 1027 at 1092G): 

• "It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach…“

• “This remains true in the 21st century, except that nowadays the poison tends to spread far more rapidly.”