16th March, 2011. Crowne Plaza Hotel. Brussels. If you are interested in how policy is made in the EU make a note of that date and place.
- The new sheriffs rode into town
Neelie Kroes is a Vice President of the European Commission. She has responsibility for the EU’s Digital Agenda. Kroes took up her post last year and not long afterwards acquired Robert Madelin as her new Director General for the Information Society and Media. New but not ingénue. Madelin’s previous job was Director General of Health and Consumer Protection, also with the Commission. Kroes’s and Madelin’s shared agenda for cyberspace is starting to become very clear, at least in my kneck of the woods.
On Wednesday Madelin delivered an electrifying, radical speech. Everyone is now on notice. The future of self-regulation as the preferred means of making policy in the field of online child protection hangs in the balance. A strand of policy in play since the mid-1990s suddenly looks very unsteady on its feet.
Here is one of Madelin’s opening lines
“Self-regulation is coming under enormous scrutiny. Proof it can work needs to be brought to ripeness quickly.”
Madelin was not expressing impatience. He understood that self-regulation can be hard work, and that meant it would not necessarily always be speedy work. But in the tone and style there was more a sense of disappoinment that there was still so little to show for it in several key areas. This was what was calling into question the validity of the entire model.
- No room for doubt or ambiguity
I am not an expert note taker so in some of the quotes I attribute to Madelin in this blog I may not have got his words exactly as he uttered them, but there was absolutely no doubt or ambiguity about their burden.
First of all Madelin emphatically did not say that self-regulation is already a dead duck. But in amongst the perfect manners and elegant concision was a steely sense the bird might be heading towards life support. More than once there were references to there being about twelve months to show that self-regulation can deliver. As in
“This is a crucial year for the legitimacy of the self-regulatory model.”
Madelin’s view was self-regulation has many potential advantages which most definitely are worth preserving, if they can be. He professed himself a fan and also spoke with evident warmth about the multi-stakeholder approach referring, inter alia, to the IGF and other transnational discussions about internet governance and management which emphasise this aspect.
Indeed it was clear Madelin thought there were some, albeit unspecified areas where self-regulation might be the only way to approach policy. Against that there was an intriguing reference to people in Madelin’s universe who plainly think the Commission passively acquiesces in self-regulation in the online child protection space only because
“We are not ambitious enough.”
I think this analysis is ahistorical but I am not at all surprised to hear it. Raking over the past, examining the minutes of every meeting will not move anything forward. Proper respect should be paid to what self-regulation has achieved but we are where we are. There is no point being sentimental about it.
- The three conditions
In his previous role Madelin engaged with Europe’s advertising industry to look at how their self-regulatory systems worked. He got up close and personal. For self-regulation to succeed in any industry, according to the Madelin doctrine, it must be founded on three basic principles
1. Transparency. All stakeholders must be involved from the start
2. Accountability. All the parties must set goals and agree the principles
3. Monitoring. Agreed metrics are vital
Madelin spoke most passionately around the issue of transparency. In a classical allusion to the siren voices and temptations of secrecy he urged industry in particular to
“Bind yourself to the mast of openness.”
This was, I assume, a calculated rebuff and a rebuke for the farce which has developed around industry’s attempt to produce a code on location aware services and for the still unseen draft statement of overarching principles, intended to govern the provision of a wide range of online services to children and young people. A Conclave at the Vatican probably has more fresh air circulating within it.
- Let the sunshine in
My gut feeling is the great majority of companies who are involved in discussions about self-regulation around online child safety, both in the UK and at EU level, act in good faith all of the time or perhaps, in some cases, very nearly all of the time. But I am equally certain there are others who could be slotted in under quite a different heading.
These want self-regulation to fail and will discretely help it to fail in the foolish belief they will then be in a better position. You can just about imagine how that might work if you were dealing with a single national Government that lacked the confidence and the wherewithal. But it will not wash with the EU. Size may not be everything but in some circumstances it is pretty close.
Thus I have been astonished by the way the good guys have, in effect, been providing cover for the less good or even the bad. Perhaps they do this out of a misplaced sense of solidarity. I don’t want to think about less charitable interpretations. Either way, as a strategy it has seriously misfired. They might be about to get exactly what only some of their number wished for.
I do not by any means accept that in the saga that is self-regulation all of the fault for the lack of product or for the current doubts about its future lies entirely on the side of industry. It is ridiculous to suggest that the Commission has always and forever been blameless. But I have always been of the view that, whatever the bureaucracy and the politicians might throw at you, or forget to throw at you, it is very much in the industry’s interest not to allow self-regulation to fail or be found wanting. We are not in that place today. I hope we may yet reach it.
- Anyone can talk privately
Madelin’s approach denies oxygen to collectivist, potentially anti-competitive camouflage. Obviously any combination of people and companies can talk privately, before, after or even during any number of meetings but there must be a public space where a genuine dialogue can happen.
Pointedly Madelin referred to examples, presumably from his days dealing with advertisers, where firms had gone into a huddle, come out with a paper they considered to be a finished position then, essentially, refused to negotiate even the placing of a single comma. The process of producing the document had been so difficult, so painful and protracted. To open up anything meant opening up everything. Yep. I recognise that. Been there. Got the T-shirt.
- Implications for national initiatives
One of the more intriguing questions is how all this could impact on national attempts at self-regulation, for example here in the UK.
All the high tech firms I know have repeatedly said they would prefer to work to a single EU-wide set of standards which are negotiated centrally. Nobody relished the thought of having to talk to 27 different national governments about essentially the same issues.
My view and that of the UK children’s organizations was that we were willing to give that a go. It seems sensible. But every country in the EU and every national children’s organization will always, at the very least, reserve the right to say whenever necessary
“While the EU-wide code is broadly OK, to meet our funny little ways or peculiar local laws it needs a tweak here or an extra bit there.”
But how will internet companies feel if the whole area starts to become encased in hard law? In particular what will they think about UKCCIS, the flagship of self-regulation in Great Britain? It seems unlikely a major shift in policy of the kind discussed here would have zero effect.
- Implications for international initiatives
It is very striking how many Governments and Governmental agencies around the democratic world are all moving in broadly the same direction at roughly the same time.
Some of the old internet hands will see this as a threat. I see it as growing evidence that the internet is now accepted as an integral part of our everyday lives. It is therefore just as much up for scrutiny and debate in the public and political domain as any other aspect of modern living might be, for example a country’s policy on clean energy or food subsidies.
How long has everyone been calling for greater harmonisation of laws for dealing with the internet and for improved ways of tackling various problems such as illegal behaviour? About as long as the internet itself has been in the mass consumer market.
Again there is a role for the industry to give a lead in a self-regulatory way. However, as the story I have just told about what has been happening in the EU aptly illustrates, if that does not happen, if it does not very visibly work, the only bets I am interested in taking are about when an equivalent, serious multinational state-led response starts to emerge.
Early thoughts. Interesting times.
Desiderata 