Catching up on the day job, so missed a couple of streams.
First our Chair of BILETA, Abbe Brown of Aberdeen U Law Faculty. Her paper, Regulatory creativity: Combination and coherence? explored legal and regulatory creativity as different actors and regimes seek – directly and indirectly, deliberately and perhaps not – to draw together different legal fields, including intellectual property law and laws relevant to information, to pursue a goal other than encouragement of innovation and creativity. In more detail she deals with the creation of new regimes regarding soil science data in Scotland and in England; use of health data in research in Scotland and in England; oil and gas and decommissioning technology and information at UK level; and the negotiation of a new international agreement in relation to marine genetic resources in areas beyond national jurisdiction. None of these regulatory and policy steps have IP or information laws as a starting point; all of the decisions made have implications for them. Quite a remarkable paper, huge range of regulatory interests and issues she is dealing with – the example from soil science in Scotland was particularly good, which Abbe compared with the privatisation of data via MAFF and Cranfield in England & Wales. Depressing, like the privatisation of water in England, the consumerisation of student debt and much else south of the border. 🏴 Bring on Indyref 2. 🏴 [me, not Abbe] She dealt with levels of engagement in creating new regimes with IP and information law including conflict and its possibility. In conclusion Abbe observed that she was developing arguments regarding new approaches for policy and regulatory creativity in the technology and information space. Very suggestive, provocative paper. Lots to digest. It made me compare the situation with HE in Scotland and England.
Aysem Diker Vanberg next (Goldsmiths), on Co-ordinating digital regulation: Is the Digital Regulation Cooperation Forum up to the task? The regulation of digital technologies is receiving increasing scrutiny globally and, in the UK, as exemplified by the proposed Digital Markets and Digital Services Act by the European Union and the establishment of the Digital Markets Unit within the CMA. December 2021, the House of Lords Comms & Digital C’ttee published a follow-up report entitled ‘Digital regulation: joined-up and accountable’. Aysem recommended the report. In it, the Committee commended the establishment of the new Digital Regulation Cooperation Forum (DRCF). But they raised serious concerns due to a lack of overarching coordination and oversight of regulatory activities. The report recommended that the DRCF should strengthen and formalise links with other stakeholders including industry and academia. Aysem investigated how effective the DRCF is in achieving coordinated digital regulation. She argued that coordination between various regulatory authorities needed to be formalised and extended to avoid what she called fragmented enforcement. Eg she argued for the DRCF formalizing links with industry and academia. And a successful DRCF could set a good precedent for other jurisdictions.
Next up, Martin Samek (Chales U Faculty of Law, Prague) on ‘Recent net neutrality judgements and zero rating in the EU after recent decisions. Here, ‘zero rating’ means the ISP doesn’t cound data usage of (certain) apps or websites towards the data cap of the end-users. But Art 3 of Open Internet Regulation states that providers of internet access services shall treat all traffic equally. Martin explored what discrimination actually means in various contexts, egdiscriminating people vs discriminating content, or Constitutions and Bills of Rights vs tech-specific regulation. He described the short and simple, yet game-changing three judgments C-854/19, C-5/20 and C-34/20 of the CJEU: “‘Zero tariff’ options are contrary to the regulation on open internet access”, as quoted by the press release. According to Martin, this is a ‘net neutrality bomb’: they completely undo what has been written in the Guidelines issued by the Body of European Regulators for Electric Communications (BEREC) for the Open Internet Regulation and what has been promised to service providers by the regulators. These guidelines are not binding, however. BEREC updated the Guidelines after the CJEU rulings. How are ISPs reacting? They’re still pushing out zero-rate services. Martin asked, will this change the way tech regulation Acts are created in the future? And left us with that question hanging in the air…
Second-last paper of the day was Jennifer Cobbe (U Cambridge) on ‘Structuring interdependence: understanding law and tech through figurations.’ As a fan of Harold Bloom and J. Hillis Miller since I was an Eng Lit undergrad I was interested in this paper, particularly the word ‘figurations’. Jennifer argues that existing and proposed laws relating to digital technologies – such as around data protection – are often grounded in faulty, misguided, or incomplete understandings of relevant social, technological, legal, and political economic relations and processes. She proposed that that Norbert Elias’s sociological concept of the ‘figuration’ – conceiving of human relations in terms of processes, webs of interdependence, and balances of power – can provide useful insights into the nature and effect of both technologies and law in structuring human relations. She argues two things:
- that key to effectively regulating digital technologies is in understanding that technologies are produced by, exist within, and form complex, dynamic social processes that allow human relations to be structured in particular ways by providing for or affording certain forms of interdependence between people
- law is also a complex process of developing, writing, interpreting, applying, and contesting legal frameworks and provisions and similarly has a significant effect in structuring and governing human social interdependencies and in technological and political-economic development.
She concluded that future regulation can better account for the roles that both technology and law play in ongoing and influential processes of social and political economic change by considering how these structuring effects originate, operate, and play out in concert with other structural influences. This is an interesting approach, full of potential theoretical direction. I was thinking a lot while Jennifer was talking about the play of figuration in Bloom. How the early Yeats, eg, is overpowered by the anxiety of influence provoked by the pre-figure of Shelley; and how Yeats has to find ways, figurations, to take a clinamen, a creative swerve around Shelley, to find his own voice. How that might play out in the field of law and regulation, particularly given the powerful relationship that such anxiety provokes…
I’ll park that one for now. Because final paper speakers have started: Edina Habinja and Mark Leiser (Aston U & Leiden U respectively): their paper was titled (exact quote…): [Redacted]: This Article Categorised [harmful] by the Government’. Nice one. They focus on the concepts of legal and harmful content in the recent draft of the UK Government’s DCMS White Paper for ‘Online Harms’, which would establish in law a new duty of care towards users by platforms to be overseen by an independent regulator. Edina and Mark set out key arguments as to why risk-based regulation and duty of care are not appropriate for policing content and expression online. They focused on the human rights implications of the Bill, in particular, the provider duties to ‘handle’ legal but harmful content. They reemphasised the vague conceptualisation and nature of this harm, as well as the inadequate duties attached to it. They argued that the independence of OFCOM cannot be guaranteed. Clearly, with the bill still in process, this is a work in progress, and they both acknowledged that the govt’s position had shifted. But nevertheless there are deep dissatisfactions about the key issues of harmful content to be defined by the Secretary of State – and who would trust a SS to do that? Particularly a Tory SS. Particularly the current Tory SS [my comments, not Edina or Mark’s] But wait! Dorries is being referenced after all! Fine paper, full of fascinating detail, and with a flexible approach to what’s clearly still a moving target.
