Can regulation save the Internet? The view from London

Can regulation save the Internet? The view from London

Commentary

Figures from across government, the private sector, and wider society argue in favour of adequate regulation to mitigate the harmful effects of the internet. But what should this regulation look like?

The Digital Revolution is bringing sweeping change to all aspects of life, fundamentally transforming economies and societies around the world at a breathless pace. Amid this rapid process of digitalisation, the utopian optimism that first surrounded internet communication and technology has steadily given way to a more nuanced appreciation of the host of challenges and opportunities it creates.

The internet was once widely perceived as a space for innovation overseen by little to no traditional regulation. However, this paradigm is increasingly being questioned by figures from across government, the private sector, and wider society – who argue in favour of adequate regulation to mitigate the harmful effects of the internet. But what should this regulation look like? Who is responsible for implementing it?

On 10 May 2019, the European Council on Foreign Relations organised a workshop in London, in collaboration with Telefónica, to debate these questions. The workshop brought together 25 leading experts from the UK government, civil society, and the private sector to identify the key problems in internet regulation and possible solutions to them, drawing on the British experience.

Key issues

Opaque and unaccountable platform governance

Online platforms do not passively allow access to content but actively curate the flow of services and communication to users – often through the opaque functions of algorithms, which have consequences that are only now starting to be understood. Platform governance has slipped the moorings of national law and democratic accountability. The regulation of the platform economy poses many challenges for governments – particularly in gaining visibility and some level of influence on platforms, without trying to control them through prescriptive rules or forms of governance that are insufficiently nuanced to address challenges in the area.

Regulation versus freedom of speech 

Under the European Union’s Terrorist Content Regulation, companies can be fined up to 4 percent of their revenue for failure to remove terrorist content from their websites or other platforms. Hefty economic sanctions such as these are likely to lead companies to be overzealous in their content removal, undermining freedom of speech. Some participants in the workshop argued that a proposal for a worryingly similar take-down regime features in the UK government’s Online Harms White Paper.

Regulation as a burden on small companies 

Broad-brush regulation that is resource-intensive will be difficult for small companies to implement, placing an undue burden on them and thereby entrenching the dominance of large firms. However, one cannot overlook small companies, as much unacceptable content is hosted on small, niche platforms, which are often interdependent with bigger platforms. For example, grooming may begin on small platforms and then move to larger ones.

Geo-economic and geopolitical implications 

The internet has become a site of geopolitical and geo-economic competition, as have other new technologies such as artificial intelligence. There is a consistent gap between policymakers who do not grasp the implications of technology for their geopolitical interests, and technologists and private companies that do not understand these interests. As witnessed in the ongoing dispute over 5G and the rising “splinternet” phenomenon, European policymakers can no longer delay their engagement with these issues. 

Uninformed policymakers and judges 

Policymakers and judges at the national and European level may not be sufficiently resourced or informed to regulate the internet and the tech industry or to enforce the law in these areas. This can lead to a lack of regulation or else bad regulation, such as knee-jerk “regulation by outrage”. Efforts to deal with the scale, complexity, and jurisdictional challenges posed by the internet will require a great deal of political will and investment.

Possible solutions 

Interpret and apply existing laws 

One participant argued that, instead of enacting new laws, governments could re-interpret several existing laws – such as competition law on mergers – and apply them to the digital sphere. The EU has been successful in modernising existing rules or frameworks in not only competition law but also data protection. However, the alignment between member states and EU institutions that made this possible may be difficult to replicate in more contentious areas, such as online content and conduct that involve national sensitivities.

Resolving information asymmetry

As one participant pointed out, politicians may not understand technology, but the tech industry has not made a concerted effort to help them do so. Tech companies should address this information asymmetry by educating policymakers – or else see themselves continuously fall victim to misguided pieces of legislation.

Duty of care

Several participants argued that other legal frameworks, such as those on customer protection or health and safety, could provide models or precedents for the governance of platforms and online systems more generally. Tech companies would be obliged to put in place terms of service that prevent unacceptable activities on their platforms. Such a measure could address policymakers’ priorities while addressing concerns about scope and freedom of speech. This approach underpins the “duty of care” proposal envisaged in the Online Harms White Paper.

Alternative incentives and framing 

One participant suggested a pivot from punitive sanctions to mechanisms that encourage good corporate conduct – such as tax breaks to incentivise ethical behaviour – in the context of internet regulation. A focus on “supervision” and “accountability” would perhaps be more helpful than that on regulation, as this would encourage companies to take measures that shore up public trust in them.

Regulatory proportionality

Instead of tracking every activity through constant monitoring, regulation should aim to create a system that is safer overall – possibly through statistical sampling instead of monitoring. This approach could ensure that, while a few small things slipped through the net, the system as a whole remained safe. Regulation should also be proportionate to its impact upon small businesses.

A degree of self-regulation/co-governance

Co-governance will be essential, as platforms have more data about their operations and its effects than regulators do. As such, platforms are in a better position to enforce rules and other limits, while regulators can better decide what those rules and limits should be, working in the public interest. However, to do this, the division of roles and responsibilities between governments, platforms, and regulators must be clearly determined on every issue ranging from the definition of hate speech to election interference.

Agile regulation

Regulators should adopt an “agile” approach similar to that of platforms themselves. Instead of rolling out a permanent piece of regulation, regulators could pilot it, test the water, receive feedback, and then tweak it accordingly. Such an iterative, incremental, and more real-time approach would provide the flexibility needed to regulate such a dynamic industry. It would also appeal to industry representatives as an approach similar to their own.

The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.

Read more on: European Power, European Strategy, Digital, Digital Power project

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