Exception and Harmonization: Three Theoretical Debates on Internet Regulation

Abstract

The article discusses a selection of theoretical inputs underlying discussions on the regulation of Internet-based services. Since the Internet’s expansion into civilian use in the 1990s, the debate on regulation of specific digital markets (e.g. audiovisual services, social networks or transportation services) has skirted around the ideas of exception and harmonization. That is to say that stakeholders have often approached these debates from the narrow perspectives of topical sectoral conflicts of interest, where policy choices swung between extension of pre-existing legislation to new services and exceptional measures (which often meant no measure). There are, however, theoretical frameworks that may underpin and inform regulatory choices in the face of those dilemmas, broadening the understanding of the challenge of Internet regulation and what it demands from legislators. This article aims to contribute to this framework by bringing three strains of theories applicable to Internet regulation. Namely on (i) the theoretical context of insufficiency of traditional regulatory means and the quest for other means of legitimation; (ii) on the peculiar challenges that technologies impose on regulators; and (iii) on how these challenges are reflected in the specific context of Internet based services. Hence, it proposes a recapitulation of the academic literature that has dealt with such issues and that is relevant to digital regulation discussions across different markets.

Keywords: Technology regulation; Internet regulation; Exceptionalism