Internet Co-Regulation and Constitutionalism: Towards a More Nuanced View

Abstract

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. The varying interests of actors result in different incentives to cooperate or attempt unilateral actions at the various points of the value chain. Without regulation responsive to both the market and the need for constitutional protection of freedom of expression and protection of minors at national levels, Internet co- and self-regulatory measures cannot be sufficiently responsive to economic and cultural environments to be self-sustaining. It 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 such that it cannot be ascribed to self-regulation, in the absence of the nation-state or European law. It is often identified with the rise of the ‘new governance’ in the late 1990s in environmental and financial regulation, yet its growth can also be traced to the birth of Information Society policy in the mid-1990s. Co-regulation constitutes multiple stakeholders, and this inclusiveness results in greater legitimacy claims. The state, and stakeholder groups including consumers, are stated to explicitly form part of the institutional setting for regulation. However, direct government involvement including sanctioning powers may result in the gains of reflexive regulation – speed of response, dynamism, international cooperation between ISPs and others – being lost. It is clearly a finely balanced concept. The growing gulf between states’ preference for regulatory and self-regulatory solutions, and citizens’ preferences for greater control if not ownership of vital regulated industries, has led to a crisis of legitimacy. This article analyzes co-regulation, by defining and exploring its recent institutional history together with that of Internet self-regulation. It then assesses the legal definitions and taxonomies of co-regulation before constructing a twelve-point scale of self- and co-regulation. It explores the possibility for judicial review of co-regulatory arrangements, recent case law that concerns human rights and Internet co-regulation, and regulatory pronouncements.

Keywords: co-regulation, Internet, self-regulation, judicial review, constitutionalism

JEL Classification: K00, K20, K23, K42, L50