Artificial Intelligence is the use of advanced forms of machine learning, including neural networks. It has been in existence as a concept since Turing and von Neumann explained the techniques of data processing. When we talk to policymakers about AI regulation we face a very similar problem as with cyberlaw and network neutrality. It is undefined, as revealed in the inadequate European Union AI Act in draft. Legal technology history requires this primer on the good/bad lessons of cyberlaw & network neutrality history versus AI unregulation. There is a contemporary comparison for AI regulation via ethics with disinformation and electronic privacy policy, all largely unenforced and left to ethical codes of conduct. Some differences exist, but cyberlaw and broadband policy provide good comparisons with AI policy, because all are broadly general purpose technologies that must eventually be regulated. I argue in conclusion that effective enforcement will require co-regulation.

1. ARTIFICIAL INTELLIGENCE CO-
REGULATION:
A COMPARATIVE LEGAL HISTORY
FROM NETWORK NEUTRALITY AND
EUROPEAN INTERMEDIARY LIABILITY
@PROF_MARSDEN
PROFESSOR OF AI, TECHNOLOGY AND THE
LAW, MONASH UNIVERSITY
PLAMADISO 31 MARCH 2022

2. I RESEARCH THE APPLICATION OF
ARTIFICIAL INTELLIGENCE TO
DEMOCRATIC PROCESSES
• Election cybersecurity & political disinformation, recent reports
• European Parliament (2019) Commonwealth (2020)
• Chris Marsden, Trisha Meyer, Ian Brown, [2020]
• Platform values and democratic elections:
• How can the law regulate digital disinformation?
• Comp. Law & Security Rev. https://doi.org/10.1016/j.clsr.2019.105373
• Brown, Ian, Chris Marsden, James Lee, Michael Veale [2020]
• Electoral Cybersecurity in the Commonwealth: A Good Electoral Practice Guide,
Commonwealth Secretariat
• Marsden, C. and Meyer, T. [2019]
• Regulating Disinformation with Artificial Intelligence (AI):
• The effects of disinformation initiatives on freedom of expression and media pluralism,
• Directorate-General for Parliamentary Research Services (EPRS) European Parliament, doi:

3. UK AI RESEARCH
• Trusted Autonomous Systems Governance & Regulation Pillar 1, my
focus is
• the future of Artificial Intelligence regulation, focussed on those
issues above,
• the proposed EU Artificial Intelligence Act and its enforcement,
• where the rhetoric very often is completely at odds with the reality and
• poorly understood by observers outside the European institutions.

4. 2022 IS AN EXTRAORDINARY YEAR

5. WHEN WE TALK TO POLICYMAKERS ABOUT AI
REGULATION
WE FACE A VERY SIMILAR PROBLEM AS WITH
INTERMEDIARY LIABILITY & NETWORK NEUTRALITY
Most don't even know what it is, as revealed in the inadequate AI Act in
draft.
• AI in 2022 (as loosely defined) looks as mysterious as
• the Internet at the time of the dotcom boom or broadband deployment.
• Effective enforcement will be incredibly difficult & require co-
regulation.
• Legal technology history requires a primer on the
• good/bad lessons of intermediary liability & network neutrality history
• versus AI unregulation

6. METHOD: INTERVIEWS/WORKSHOPS/PROJECT
TEAMS
OECD [2017] OECD Telecommunication and Broadcasting Review of Mexico 2017, OECD Publishing, Paris
at http://dx.doi.org/10.1787/9789264278011-en 270pp
Marsden, C. [2015] Openlaws D1.2.d3 Case study 2: UK report for legal, social and business aspects of
re-use of legal information, for DG JUST
Marsden, C. Zevenbergen, B., Marzouki, M., Bygrave, L., Morando, F., Powell, A., Turk, Z., and Salamatian,
K. [2015] EINS “D4.3: Final Report” http://www.internet-science.eu/groups/governance-regulation-and-
standards
Guadamuz, Andrés and Marsden, Christopher (2014) Bitcoin: The Wrong Implementation of the Right
Idea at the Right Time June 18, Available at http://dx.doi.org/10.2139/ssrn.2526736
Marsden, C. [2013] Criminal Policy: The legal, practical and academic status and prospects of Net
Neutrality and Communication Confidentiality in the United Kingdom and Europe, Consultancy Report for
Korean Prime Minister’s Office/Institute of Criminology
Marsden, C. Powell, A., Pavan, E., and Merzouki, M. [2013] EINS “Deliverable D4.1. Overview of regulatory
and governance methodologies” http://www.internet-science.eu/publication/489 33,533w
Marsden, C. David-Barrett, T., Pavan, E., Ciurcine, M., Arata, G., Mantelero, A., Brown, B., McMillan, D.,

7. LOTS OF BROADBAND & INTERMEDIARY LIABILITY REPORTS
BASED ON INTERVIEWS, WORKSHOPS
Marsden C., J. Cave and S. Simmons [2008] Options for and Effectiveness of Internet Self- and Co-Regulation, TR-566-EC
RAND: Santa Monica, CA.
Marcus, J. Scott, Carter, Kenneth R., Robinson, Neil, Klautzer, Lisa, Marsden, Christopher T., Reidenberg, Joel R., Poullet,
Yves, De Villenfagne, Florence, Dumortier, Franck, Peake, Adam, Kamimura, Keisuke and Tanaka, Tazuko, [2007]
Comparison of Privacy and Trust Policies in the Area of Electronic Communications. Available at
http://ssrn.com/abstract=1086929
Marsden, Christopher T., Cave, Jonathan and Hoorens, Stijn, [2006] Better Re-Use of Public Sector Information: Evaluating
the Proposal for a Government Data Mashing Lab, Available at SSRN: http://ssrn.com/abstract=2142023 or
http://dx.doi.org/10.2139/ssrn.2142023 formerly PM-2169-DFT 11th October 2006 Prepared for the Cabinet Office Data
Grand Challenge
Chris Marsden and William Lehr [2006] Assessing Future Broadband Technology Trends To 2016 PM-2205-FOR 28th
November 2006 for Forfàs
Marsden, Chris with J Cave, E Nason, A Parkinson , C Blackman, S Forge [2006] Assessing Indirect Impacts of the EC
Proposals for Video Regulation, RAND: Santa Monica, TR-414 at http://www.rand.org/pubs/technical_reports/TR414.html
for Ofcom & UK Department for Business
Horlings, E., Marsden C., Van Oranje C. and Botterman M. [2006] Contribution to impact assessment of the revision of the
Television without Frontiers Directive, TR-334-EC DG, at www.europa.eu.int/comm/dgs/information
society/evaluation/studies/
Marsden C. et al [2007] Responsibility in the Global Information Society: Towards Multi-stakeholder Governance, TR-472-
BT RAND: Santa Monica, CA
D. Tambini, Marsden, C., [2004] Self-Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in
Sectoral Analysis Final Report of IAPCODE Project for European Commission DG Information Society Safer Internet Action

8. ARTIFICIAL INTELLIGENCE IS THE USE OF ADVANCED
FORMS OF MACHINE LEARNING, INCLUDING NEURAL
NETWORKS
• It has been in existence as a concept since
• Turing and von Neumann invested the techniques of data
processing
• In the so-called ‘AI winter’ of the 1980s following the Lighthill
report of 1973,
• academic natural language recognition and robotics research was
scaled back
• but many aspects of what later became termed AI developed
rapidly,

9. WHAT IS THE AI
REGULATION
MOMENT?

10. ARTICLE 3(1) OF THE DRAFT AI ACT
STATES THAT 'ARTIFICIAL INTELLIGENCE
SYSTEM' MEANS:
• software that is developed with [specific] techniques and approaches
listed in Annex 1
• can, for a given set of human-defined objectives, generate outputs such
as content, predictions, recommendations, or decisions influencing the
environments they interact with
• Annex 1 lays out a list of techniques and approaches that are used
today to develop AI.
• 'AI system' would refer to a range of software-based technologies that
encompasses 'machine learning', 'logic and knowledge-based' systems,
and 'statistical' approaches.

11. SO AI MEANS:
•Whatever Annex 1 intends it
to mean
•At any point in time…

12. COVERS AI SYSTEMS THAT CAN BE USED ON A
STAND-ALONE BASIS OR AS A COMPONENT OF A
PRODUCT.
• proposed legislation aims to be future-proof and cover future AI
technological developments
(Ever known any EU legislation that didn’t…?)
• Commission would complement the Annex 1 list with new
approaches and techniques
• used to develop AI systems as they emerge –
• through the adoption of delegated acts (Article 4)
• Using European standards….

13. REMINDER:
DATA X SELF-ADAPTIVE ALGORITHMS
= AI

14. AI ACT GIVES EUROPEAN REGULATION TO
JTC 21
• VDE Sebastian Hallensleben accused Michael Veale of being
"almost a conspiracy theorist"
• all standards bods in JTS21 “For are they all, all honourable
men...”

15. CEN AND CENELEC ESTABLISHED THE CEN-
CENELEC JOINT TECHNICAL COMMITTEE 21
‘ARTIFICIAL INTELLIGENCE’
• based on the recommendations presented in the CEN-CENELEC response to
the EC White Paper on AI,
• the CEN-CENELEC Focus Group Road Map on Artificial Intelligence, and
• the German Standardization Roadmap for Artificial Intelligence.
• The Joint Technical Committee, whose Secretariat is held by DS, the Danish
Standardization Body,
• is responsible for the development and adoption of standards for AI and
related data,
• as well as provide guidance to other Technical Committees concerned with
AI.

16. CEN-CLC/JTC 21 IDENTIFIES AND ADOPTS
INTERNATIONAL STANDARDS ALREADY
AVAILABLE OR UNDER DEVELOPMENT
• ISO/IEC JTC 1 and its subcommittees e.g. SC 42 Artificial
Intelligence.
CEN-CLC/JTC 21 focuses on producing standardization
deliverables
• that address European market and societal needs,
• as well as underpinning EU legislation, policies, principles, and
values.
• Values? Very controversial in JTC21 – Democracy? Human
rights?

17. IT TOOK THE DOT-BOMB CRASH & 9/11
• to get policymakers to seriously engage with cyberlaw regulation
• very loose virtual self regulation of CDA s230 after 1996,
• E-Commerce Directive largely unenforced early after its coming into force in
2002
• The same applies for network neutrality in Europe
• until the telecoms platforms blocked Skype and WhatsApp in 2011
• Glorious moment: KPN Finance Director boasted on an earning call about
blocking WhatsApp

18. CYBERLAW ROLLED INTO NETWORK NEUTRALITY
WITH PHORM & COPYRIGHT POLICING?
• There is a contemporary comparison for
• AI regulation via ethics with
• disinformation and electronic privacy policy,
• all largely unenforced and left to ethical codes of conduct.
• AI Act is intended to pre-empt Germany (and a few others)
adopting regulation?

19. SOME DIFFERENCES EXIST, BUT CYBERLAW AND
BROADBAND POLICY PROVIDE GOOD COMPARISONS
WITH AI POLICY
• because all are broadly General Purpose Technologies
• that must eventually be regulated.
• Note Also #splinternet #netneutrality &
• Chinese/US/EU #magicAI sponsorship.

20. HAS NET NEUTRALITY BEEN PROPERLY ENFORCED IN
EUROPE?
• Except for egregious zero ratings cases in Germany/Hungary and
Netherlands?
• Cases C-854/19, C-5/20, C-34/20
• Regulators hate enforcing it and
• will do almost anything to avoid collecting evidence –
• To suggest it has any influence on fibre networks is…heroic….
• Economists often ignore the reality of
• non-enforced regulation which does not influence investment.

21. BIRD & BIRD TRIENNIAL REVIEW FOR THE EU
COMMISSION
• https://www.twobirds.com/en/news/articles/2019/global/new-study-offers-comprehensive-
assessment-of-open-internet-rules
• Marsden, Andrea Renda & Scott Marcus on the advisory panel to 2019
study
• Real world non-effect, research of Chair of Internet Engineering Task
Force (IETF): https://ora.ox.ac.uk/objects/uuid:757d85af-ec4d-
4d8a-86ab-4dec86dab568
• Cooper, Alissa and Brown, Ian (2015) Net Neutrality:
Discrimination, Competition, and Innovation in the UK
and US, 15 ACM Transactions on Internet Technology1
Article No.: 2 pp 1–21

23. REGULATOR REPORTS ON PANDEMIC NET
NEUTRALITY
• BEREC: BoR (21) 119 Report on the implementation of Regulation (EU) 2015/2120
and BEREC Open Internet Guidelines 2021 published 5.10.2021
• https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/10034-
berec-report-on-the-implementation-of-regulation-eu-20152120-and-berec-open-
internet-guidelines-2021
• European Commission: Annual country reports on Open Internet 1 May 2020 to
30 April 2021
• https://digital-strategy.ec.europa.eu/en/library/annual-country-reports-open-internet-
national-regulatory-authorities-2021
• Example – Malta just allows its biggest telco to offer multiple zero rating products!
• https://ec.europa.eu/newsroom/dae/redirection/document/78866
• Ofcom: A report on our approach to monitoring and ensuring compliance with
the Open Internet Regulation from May 2020 to October 2021
• https://www.ofcom.org.uk/__data/assets/pdf_file/0028/227485/Monitoring-compliance-

24. BEREC HAS LAUNCHED A CONSULTATION
ON THE NET NEUTRALITY GUIDELINES
• Hopefully finally acknowledge the unsolved problem of Zero
Rating
• Draft updated Guidelines consultation March 2022
• final decision in BEREC plenary in June or October 2022
• telecoms industry will try to prevent clear rules that would prohibit a
widespread practice
• that they have adopted in almost every EU country in order to cement their
market position.
• civil society to help finally complete the net neutrality framework in Europe.

25. IS UK GOING TO CHANGE POST-
BREXIT?
Ofcom review UK’s net neutrality rules, potentially more flexible
regulations
Ofcom will announce the results of its review in “spring 2022” (May?)
• https://www.ofcom.org.uk/__data/assets/pdf_file/0015/224142/call-for-evidence-net-
neutrality-review.pdf
BT CEO called for greater freedom for operators:
• “Coronavirus pandemic demonstrated the benefits in being more
flexible.”
• https://www.techradar.com/uk/news/ofcom-to-review-uks-net-
neutrality-framework

26. MY AI DISINFORMATION
RESEARCH REPORTS
Reports for EU Parliament 2019 (28 nations), Commonwealth 2020 (56 nations),
• http://sro.sussex.ac.uk/view/creators/9904.html
• Academic articles:
• Chris Marsden, Trisha Meyer, Ian Brown, [2020] Platform values and democratic elections:
How can the law regulate digital disinformation? Comp. Law & Security Rev. at
https://doi.org/10.1016/j.clsr.2019.105373
• Christopher T Marsden and Rob Nicholls, ‘Interoperability: A Solution to Regulating AI and
Social Media Platforms’ [2019] Computers and the Law, at
https://www.scl.org/articles/10662-interoperability-a-solution-to-regulating-ai-and-
social-media-platforms
• Marsden, Chris, Ian Brown, Michael Veale [2021] Responding to disinformation: Ten
recommendations for regulatory action and forbearance, Chapter 11 in M. Moore D.
Tambini ed. Regulating Big Tech: Policy Responses to Digital Dominance, Oxford
University Press, at
https://oxford.universitypressscholarship.com/view/10.1093/oso/9780197616093.001.
0001/oso-9780197616093-chapter-12
• Marsden, C. [2022] Platform Law in Europe: Combatting Online Harms Through Co-
Regulation, 15 Journal of Law and Economic Regulation IN PRESS

27. 1 OCTOBER 2021:
DISINFORMATION CO-REGULATION!
• 8 new prospective signatories joined the Code of Practice on
disinformation signatories Assembly meeting
• Vimeo, social network Clubhouse,
• DoubleVerify, Avaaz, Globsec, Logically, NewsGuard, and WhoTargetsMe.
• Code is the first such framework worldwide setting out
commitments by platforms and industry to fight disinformation
• Code revision based on Commission's May 2021 Guidance
• current Code should be strengthened to respond to disinformation.
• Commission's Assessment 2020: significant shortcomings
• https://ec.europa.eu/commission/presscorner/detail/en/IP_21_4945

28. COMPLETE CO-REGULATION APRIL 2022
• The assembly, grouping the signatories of the Code
and
• new signatories that are willing to subscribe to and
take on commitments under the 2021 Code,
• met on 8 July 2021 to start the process
• that will strengthen the Code of Practice on
Disinformation.

29. ASSEMBLY MEMBERS HAVE APPROVED
A VADEMECUM
• on the organization and functioning of the process (.pdf)
• that will shape and draft the strengthened Code on
Disinformation
• Which will be written as co-regulation into the Digital Services
Act

30. 20 JANUARY EUROPEAN PARLIAMENT 1ST
READING FULL VOTE AGREES ITS REVISED
DSA TEXT
• Amendments adopted by the European Parliament on 20
January 2022 on the proposal for a regulation of the European
Parliament and of the Council on a Single Market For Digital
Services (Digital Services Act) and amending Directive
2000/31/EC (COM(2020)0825 – C9-0418/2020 –
2020/0361(COD))
• Disinformation in 11 places:
https://www.europarl.europa.eu/doceo/document/TA-9-
2022-0014_EN.html

32. DSA RECITAL 68: IT IS APPROPRIATE THIS
REGULATION
IDENTIFY CERTAIN AREAS OF CONSIDERATION
FOR SUCH CODES OF CONDUCT
• In particular, risk mitigation measures concerning specific types of illegal
content should be explored via self- and co-regulatory agreements.
• Another area for consideration is the possible negative impacts of systemic
risks on society and democracy, such as disinformation or manipulative and
abusive activities.
• This includes coordinated operations aimed at amplifying information,
including disinformation,
• such as the use of bots or fake accounts for the creation of fake or misleading
information,

33. IN RELATION TO SUCH AREAS, ADHERENCE
TO AND COMPLIANCE WITH A GIVEN CODE
OF CONDUCT
• by a very large online platform (VLOP) may be considered as
• an appropriate risk mitigating measure.
• The refusal without proper explanations by an online
platform
• of the Commission’s invitation to participate
• in the application of such a code of conduct
• could be taken into account, where relevant, when
determining whether the online platform has infringed the
obligations laid down by this Regulation
• This deleted by EParliament with strengthening next Recital

34. (69) THE RULES ON CODES OF CONDUCT UNDER THIS
REGULATION COULD SERVE AS A BASIS FOR ALREADY
ESTABLISHED SELF-REGULATORY EFFORTS AT UNION
LEVEL
• including the Product Safety Pledge, the Memorandum of
Understanding against counterfeit goods, the Code of Conduct
against illegal hate speech
• as well as the Code of practice on disinformation.
• In particular for the latter, the Commission
• will issue guidance for strengthening the Code of practice on
disinformation
• as announced in the European Democracy Action Plan.

35. PARLIAMENT PREFERS MORE REGULATORY
WORDING
• The Commission should also encourage the development of codes of
conduct to facilitate compliance with obligations in areas, such as
protection of minors or short-term rental.
• it is important to ensure consistency with already existing enforcement
mechanisms,
• such as those in the area of electronic communications or media and
• with independent regulatory structures in these fields
• as defined by Union and national law.

36. PMENT ADDS CO-REGULATION CHECK TO
RECITAL 70
• The effectiveness of the codes of conduct should be regularly assessed
• Unlike legislation, codes of conduct are not subject to democratic
scrutiny
• their compliance with fundamental rights is not subject to judicial
review.
• In order to enhance accountability, participation and transparency,
• procedural safeguards for drawing up codes of conduct are needed.
• Before initiating or facilitating the drawing-up or the revision of CoC,
• the Commission may invite where appropriate, the
• Fundamental Rights Agency or European Data Protection Supervisor

37. HOW SOON IS NOW?
AI ACT 2022
• When the 1990s cyberlaw settlement is only now being
unpicked
• via liability reforms in the Digital Services and Digital Markets
Acts,
• Disinformation rumbling into the DSA
• network neutrality barely enforced,
• does that suggest a 20/25 year movement
• towards reforming the AI Act too?
•AI Act 2045?

38. SOME FURTHER READING…
Bontridder, N.; Poullet, Y. (2021) The role of artificial intelligence in disinformation, Discussion Paper,
Namur Digital Institute, Faculty of Law, at https://researchportal.unamur.be/en/publications/the-role-
of-artificial-intelligence-in-disinformation
Inter Institutional agreement on better regulation 13 April, 2016, OJ L123, 12 May, p1 https://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2016:123:FULL&from=EN
Marsden, Chris and Trisha Meyer (2019) Regulating Disinformation with Artificial Intelligence (AI): The
effects of disinformation initiatives on freedom of expression and media pluralism, Report for Panel for
the Future of Science and Technology (STOA), Directorate-General for Parliamentary Research Services
(EPRS) of the European Parliament
COM(2021) 206 final 2021/0106 (COD) Proposal for a Regulation Laying Down Harmonised Rules On
Artificial Intelligence (Artificial Intelligence Act) {SEC(2021) 167 final}{SWD(2021) 84 final}{SWD(2021) 85
final} Brussels, 21 April
Veale, M., & Borgesius, F. Z. (2021). Demystifying the Draft EU Artificial Intelligence Act—Analysing the
good, the bad, and the unclear elements of the proposed approach. Computer Law Review International,
22(4), 97-112.
2020/2266(INI) REPORT Special Committee on Artificial Intelligence in a Digital Age
2021/0106(COD) OPINION of the Committee on Industry, Research and Energy on the AI Act

39. THANK YOU!