Internet co-regulation and constitutionalism: Towards European judicial review

Abstract

This article analyzes co-regulation, by defining and exploring its recent institutional history in the Internet environment. It then assesses the legal definitions and taxonomies of co-regulation before constructing a 12-point scale of self- and co-regulation. The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. Co-regulation has enriched conceptions of ‘soft law’ or ‘governance’ in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy more than self-regulation, which is defined by the absence of formal roles for the nation-state or European law. Co-regulation is often identified with the rise of the ‘new governance’ in the 1990s. Recent European case law has seen a long overdue emphasis placed on human rights in judicial review of co-regulatory arrangements. Without regulation responsive to both the market and the need for constitutional protection of fundamental rights, Internet regulatory measures cannot be self-sustaining.

Keywords:

• Internet law
• co-regulation
• self-regulation
• judicial review
• human rights

Notes

For a full extensive analysis with empirical case studies mapped over a multi-year European Commission funded project team led by this author, see Marsden, C. 2011. Internet co-regulation: European law, regulatory governance and legitimacy in cyberspace. Cambridge: Cambridge University Press. The author wishes to thank Dr Jonathan Cave, Dr Ian Brown, Professor Lorna Woods and other study team members for their contribution to the case studies and final report. See further the dedicated study website at http://ec.europa.eu/dgs/information_society/evaluation/studies/s2006_05/index_en.htm

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Note the powers for rights-holders compared with S.97(A) CDPA: 97A requires that the service-provider's service ‘is being used’ to infringe copyright (present tense); S.17 works even if infringement stopped forever and also if there has not yet been any infringement but it is likely to happen. S.97A requires service provider to know about infringement, section 17 does not. Under S.17 a web location blocked may not be guilty of copyright infringement, but may merely be used to facilitate access to locations that are. S.97A may not be used to prevent access to sites that are not themselves infringing. S.17 DEA is thus much wider than S.97A – if implemented!

British Telecommunications Plc R (on the application of) v Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin).

BT Plc & Another, R (on the application of) v Secretary of State for Business, Innovation and Skills [2011] EWCA Civ 1229 (7 Oct).

For background and analysis see Meyer, Trisha, and Van Audenhove, Leo. 2011. Surveillance and regulating code: an analysis of graduated response in France. Cyber-Surveillance In Everyday Life: An International Workshop, May 12–15, 2011, University of Toronto at http://www.digitallymediatedsurveillance.ca/wp-content/uploads/2011/04/Meyer-Audenhove-Regulating-code.pdf

TA No. 81. 2009. Act to promote the dissemination and protection of creation on the Internet [‘HADOPI Law’] creating the High Authority for the dissemination of works and protection of rights on the Internet (HADOPI).

Conseil Constitutionnel. 2009. Decision No. 2009-580 DC of 10 June 2009.

For earlier analysis in this vein, see Schulz, W. and Held, T. 2004. Regulated self-regulation as a form of modern government: a comparative analysis with case studies from media and telecommunications law. University of Luton Press; Scott, C. 2005. Between the old and the new: innovation in the regulation of internet gaming. In Regulatory innovation: a comparative analysis, eds Julia Black, Martin Lodge and Mark Thatcher. Cheltenham: Edward Elgar.

See generally Black, J. 1998. Reviewing regulatory rules: responding to hybridization. In Commercial regulation and judicial review, eds J. Black, P. Muchlinski, and P. Walker. Oxford: Hart.

See Scott's pioneering work on new European governance and the law, in Scott, C. 2004. Regulation in the age of governance: the rise of the post-regulatory state. In The politics of regulation, eds. Jacint Jordana and David Levi-Faur. Cheltenham: Edward Elgar; Scott, J., and Trubek, D.M. 2002. Mind the gap: law and new approaches to governance in the European Union. European Law Journal 8, no. 1.

See Klang, M., and Murray, A., eds. 2004. Human rights in the digital age. London: Cavendish. A wider global survey is contained in Deibert, R.J., Palfrey, J.G., Rohozinski, R., and Zittrain, J., eds. 2010. Access controlled: the shaping of power, rights, and rule in cyberspace. MIT Press, a survey book on internet access and filtering, documents censorship across countries, accompanied by interactive website at http://www.access-controlled.net/ which also hosts chapters available on an open access basis. It follows previous work published by same authors in project Open Net Initiative, Deibert, R.J., Palfrey, J.G., Rohozinski, R., and Zittrain, J., eds. 2008. Access denied, Cambridge: MIT Press.

See La Rue, Frank. 2011. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Human Rights Council Seventeenth session Agenda item 3, A/HRC/17/27 of 17 May 2011 at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf See further Akdeniz, Yaman. 2011. Freedom of expression on the internet: study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States. Vienna: The Office of the Representative on Freedom of the Media, Organization for Security and Co-operation in Europe, at http://www.osce.org/fom/80723. This survey of OSCE countries (56 members total) focusing on Internet filtering law and practice, concluded that data retention, anti-pornography filtering and other techniques are preventing the use of the internet, which itself should be considered to infringe on users' human rights.

See McIntyre, T.J. 2010. Are Norwich Pharmacal orders compatible with the Data Retention Directive? November 09, 2010, at http://www.tjmcintyre.com/2010/11/are-norwich-pharmacal-orders-compatible.html. McIntyre, T.J., and Scott, C. 2008. Internet filtering: rhetoric, legitimacy, accountability and responsibility. In Regulating technologies, eds. R. Brownsword and K. Yeung. Oxford: Hart Publishing, at SSRN: http://ssrn.com/abstract=1103030