In “The Birth of Platform Neo-Regulation in the UK,” Martin Kretschmer and Philip Schlesinger from the University of Glasgow explore the new approach adopted by the U.K. government to enact leading regulatory instruments to tame big technology companies.
Below, read excerpts of the piece:
There is undoubtedly a global wave of concern about how to regulate the major platforms. This widely distributed “regulatory turn” has produced a plethora of documentation. Yet, so far as the UK is concerned, if you read through the major reports published in the UK in the past couple of years you will find that the key reference points are still the EU, the U.S., and Australia.
A distinct British approach has crystallized in this global context. Given the UK’s Government’s promotion of its post-Brexit “Global-British” vision, to succeed in regulatory innovation is seen as having the advantage of potential “convening power” – in short, as offering an influential route for shaping the institutional changes to be negotiated internationally.
Yet, the geo-political repositioning undertaken by Prime Minister Johnson’s Government has set up a conundrum. The Global-British path is meant to be distinctive and unique, a liberation from unwanted trammels, and in particular to diverge manifestly from the EU’s course and practice. Moreover, it is amply clear that no state is capable of regulating major platforms on its own. Regulatory collaboration and coordination are needed.
In 2020, the UK entered a consolidating phase in its development of platform regulation. The demand for expanded regulation has resulted in two key focuses: “online harms” (encompassing mainly social and political issues), and a “pro-competition” approach (which concerns the malfunctioning of the market, supporting consumer interests, and engendering innovation).
While the subject of “online harms” has had most focus in parliamentary, media and public debate, in view of the authors, it is the economic dimension of regulation – its focus on competition and innovation – that promises to be the leading edge of present developments.
The first bill in this new era of tech regulation is the Online Safety bill, which the U.K. government intends to publish in the first quarter of 2022. The core concept of the Online Safety legislation is the imposition of a new online duty of care on platforms, requiring the removal of illegal content. For “high-risk, high-reach” services, this will extend to material that is lawful but harmful. Ofcom, the UK communications regulator, will become the designated regulator, with enforcement powers, for platforms’ “codes of practice.” The Government itself will retain important delegated powers for the “Secretary of State.”
At the same time, the UK government is consulting on the implementation of a new competition regime for digital markets. This will center on the activity of the Digital Markets Unit (DMU) which is presently in the orbit of the Competition and Markets Authority (CMA). The DMU will develop enforceable “codes of conduct” for firms with Strategic Market Status (SMS), which are likely to include the same platform services targeted by the Online Safety legislation.
Martin and Philip identified “codes of practice” or “codes of conduct” as typical interventions in the British regulatory toolbox: “Such codes are often developed in cooperation with the objects of regulation and can respond flexibly and quickly to emerging issues (such as the targeting of videos at minors). Codes of practice or conduct, however, also tend to have weak statutory underpinnings and are not readily susceptible to public scrutiny.”
The article continues, “This can bring potential challenges. For instance, the Online Safety bill, unless changes in its way through Parliament, grants the executive an unusually wide range of powers.
“The UK neo-regulation approach oscillates between digital libertarianism and digital authoritarianism. At the libertarian end, the Government promotes innovation and transparency. At the authoritarian end, the key regulatory agencies are located in a space that may allow them to operate almost beyond the law, and potentially subject to the direct instruction of the Government.”
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