This document discusses how the internet has become a leading indicator for generic regulation due to its intense relationship between users and platforms. It argues that platforms have become powerful gatekeepers similar to utilities and broadcasters that were tightly regulated in the past. The document calls for a comprehensive "prosumer law" solution that draws on principles of privacy, free expression, competition, and technology regulation to ensure a fair deal for users ("prosumers") of major internet platforms. It examines case studies and proposes an interdisciplinary approach to policymaking in this area.

1. BREXIT CANARY IN
THE COAL MINE:
WHY THE INTERNET
IS A LEAD INDICATOR
FOR GENERIC
REGULATION
CHRIS MARSDEN
IPSA
5 DECEMBER 2017

2. BREXIT MORNING 24 JUNE 2016
I was in Brussels at the European Union Economic and
Social Committee (ECOSOC)
Talking soft / co-regulation
UK a leading deregulatory partner in the European Union:
https://ec.europa.eu/digital-single-market/content/cop-agora
I am (still) a steering committee member

3. IT’S OVER

4. OLD, UNQUALIFIED, LOCAL, POOR

5. A CANARY IN THE COALMINE?
Danny Quah (1994):
Abandoning pots and pans and the heavy
metal economy for bits
“think of the unqualified as roadkill
on the information superhighway”
The roadkill has spoken?

6. ‘CANARY IN THE COAL MINE’?
Underground mining
High concentrations of
poisonous gases
Miners carried canary
When the canary stops
singing….
It’s about to fall down
Time to get out!

7. MY AREAS ARE NET NEUTRALITY
AND CO- SELF-REGULATION
Norway and UK regulator Ofcom lead on net neutrality
If we stay in the EEA,
• we’ll stay in European Regulators Group/BEREC
Or if we leave, we’ll be able to state we wrote the rules
• Many of those rely on co- and self-regulation

8. WE CAN MODEL FROM
EXAMPLES

9. INTERNET PLATFORMS HAVE
INTENSE INTERDEPENDENT
RELATIONSHIP WITH USERS
Users often don’t pay platforms for services
1. because they form an audience the platform
can sell to advertisers and direct marketers,
2. 3rd party vendors use platform to sell to users
1. paying the platform a commission
(e.g. eBay, Amazon Marketplace)

10. 2. PLATFORM USERS ALSO
PRODUCERS OF CONTENT
INCLUDING PERSONAL DATA
platforms as distributor and archive of that content,
• imposing terms of use including privacy & intellectual
property
Private platform actors regulate much activity, including
a durable and intense interaction with their users.
Also often dominant in their respective service offerings
• e.g. Google, Microsoft, Facebook, Amazon, Apple
No other private actors (utilities or car manufacturers)
• has this intense a relationship with users/consumers.

11. PROSUMER LAW AND POLICY FOR
ONLINE INTERMEDIARIES: TOWARDS
A BEHAVIOURAL SOLUTION
A decade into the Web2.0 era
• intermediaries are extraordinarily powerful gatekeepers
• broadband social media advertising-dominated Internet
• that is now a ubiquitous presence in wealthy lifestyles
These include dominant operators in:
• search (Google), operating systems (Microsoft, Android),
• media (Apple iTunes, YouTube),
• social networking (Facebook),
• photo sharing (Instagram and Snapchat),
• chat (Skype and WhatsApp),
• commerce (eBay and Amazon).
These companies dominate their respective sectors.

12. USERS ARE ALSO PRODUCERS, HENCE
TERMED PROSUMERS (TOFLER 1980)
We rely on these platforms
• to process personal data fairly and securely.
Regulatory responses are finally emerging driven by
• both data protection & competition concerns
Over-arching need: greater neutrality of intermediaries
Limited to last mile monopolists & mobile oligopolists,
• legacy telecoms providing Internet access

13. PARTICULARLY AS
INFORMATION TECHNOLOGY
IS A GENERAL PURPOSE
TECHNOLOGY (GPT)

14. #DIESELGATE

15. FINANCIAL SERVICES

16. PLATFORMS RAISE SIGNIFICANT
PUBLIC INTEREST
REGULATION QUESTIONS
Private platforms are providing what amount to mass
communications services,
• in other eras (e.g. broadcasting)
• Platforms were tightly regulated for the public good
Competition law and general data protection concerns,
• while applicable, are recognised as providing
• insufficient public interest regulation for platforms

17. WHAT WE NEED
IS A
COMPREHENSIVE
PROSUMER LAW
SOLUTION
Draws on
• fundamental human rights to
• privacy and free expression,
• competition, and
• technology regulation
• to ensure a fair and neutral
deal for prosumers

18. MARSDEN AND BROWN (2013)
COMPREHENSIVE SOLUTION
Case studies examined:
• search, social networking, Internet access, EU/US competition
and data protection
The interdisciplinary mixed method used contains
• primary and secondary literature analysis and case analysis
(both regulatory and judicial, where relevant),
• qualitative empirical interviews with leading stakeholders and
• both economic and engineering quantitative data analysis.
Law, computer science and economics interdisciplinary analysis
to explore a comprehensive policy solution to intermediary
liability.

19. INTERNET FAST-MOVING
LIKE FINANCE
Why are we surprised?
Finance is the simultaneous global transfer of
trillions of bits of data
We choose value this data as ‘money’
• Options, derivatives, Credit Default Swaps
• All enabled by Internet trading

20. STRAIGHT SHALLOW CABLES
ENABLE MICROSECOND FASTER
TRANSFERS

21. SURVEILLANCE:
INTERNET NOT SO
INNOCENT

22. INTERNET
SELF- AND
CO-
REGULATION

24. .TK FREE DOMAIN NAMES
FOR THE WORLD

25. CO-REGULATION?
Government has enabling legislation to put regulation
in place but chooses to forbear
Example: Nominet (UK Digital Economy Act 2010
amending Communications Act 2003)
But: Authority for Television on Demand
• Set up as self-regulatory Association 2003
• Authority in 2010 DEA implementing 2007 AVMS
(2010/13/EU)
• Abolished in 2016 – functions integrated into Ofcom

26. QUESTIONS?
@ChrisTMarsden