Table des matières

Olivier Bomsel

Foreword

Regulating Babel

Managing internet risks

• Designing an impact assessment for internet regulation
• Bringing smart telecommunications regulation to the internet
• The challenges of regulating access to content on the internet
• Current regulatory approaches are uncoordinated, with no guiding methodology
• Right to be forgotten
• Online copyright infringement
• Illegal online gambling
• Child pornography and terrorist propaganda
• Hate speech
• French audiovisual policy
• Apparent lack of coherence
• Diminishing role of broadcasting regulation
• A methodology against which to measure regulatory proposals
• Technical measures are inevitable
• Technical measures create harmful side-effects
• A reference methodology will help avoid mistakes
• Existing literature
• How the remaining chapters are divided

Presenting the variables of the cost-benefit equation

• Introduction
• Variable 1: Content policies
• Cybersecurity threats
• Spam and phishing
• Cookies and other forms of tracking software
• “Right to be forgotten” content
• Illegal online gambling
• Sale of cigarettes and alcohol
• Intellectual property infringement
• Defamation and the protection of privacy
• Websites promoting racial, ethnic or religious hatred
• Regulations designed to protect local culture and language
• Advertising laws
• Protection of minors against adult content
• Child pornography
• Content promoting terrorism
• Assisting law enforcement
• Valuing content policies and their enforcement
• Variable 2: Internet intermediaries
• Search engines
• Hosting providers
• Internet access providers
• Internet domain name registrar
• Payment service providers
• Internet advertising networks
• Application stores
• Content delivery networks (CDNs)
• Internet backbone providers
• End-user software
• Set-top boxes or modems
• Device operating systems
• Most measures focus on the hosting provider or the IAP
• Variable 3: The institutional framework
• Variable 4: Negative externalities caused by internet intermediary actions
• Adverse effects on fundamental rights
• Freedom of expression
• Right of privacy
• The right to property
• The right to create and operate a business
• The right to procedural fairness
• Internet-specific harms
• Harm to the good functioning of the internet
• Harm to innovation
• Unintended effects linked to user behavior
• International effects
• Solving the problem so as to maximize social benefits

Balancing fundamental rights

• Introduction
• What are fundamental rights?
• Characteristics of fundamental rights
• The cost of fundamental rights
• Economic vs. non-economic rights
• The expressive value of fundamental rights
• Freedom of expression
• General limitations to freedom of expression
• Is the internet like television?
• The nature of harms to freedom of expression
• Internet intermediary liability and free speech
• The Dennis formula and its limits
• Law and economics explanations for the high protection given to freedom of expression
• Freedom of expression and self-regulatory measures
• Privacy
• Privacy and data protection as fundamental rights
• Privacy rights in law and economics literature
• Behavioral economics and privacy
• Cost-benefit analysis applied to data protection
• How to measure costs and benefits in privacy
• Fundamental rights and proportionality
• The three-criteria test of the European Court of Human Rights
• Should a court give deference to lawmakers’ balancing?
• Identification of the conflicting rights and interests
• Balancing the relevant interests
• Absolute versus relative proportionality, cost-benefit analysis
• Proportionality and the “least injurious means” test
• Robert Alexy’s balancing test
• Nussbaum’s ethical filter
• Fundamental rights and the Hand formula

Institutional alternatives for regulating access to internet content

• Categories of institutional options
• General liability or property rules enforced by the courts
• Advantages and disadvantages of regulation by courts
• Advantages and disadvantages of court enforcement
• Advantages
• Disadvantages
• Administrative regulation
• Division of responsibilities between the lawmaker and the regulator
• General versus detailed legislation
• Regulatory authorities have better access to information and expertise
• Risk of industry capture
• Risk of regulatory creep
• Territorial limitations to regulators’ powers
• Example of administrative regulation: the FTC’s regulation of privacy
• Advantages and disadvantages of administrative regulation
• Advantages
• Disadvantages
• Self-regulation
• Self-regulation and the internet
• Self-regulation works well in groups with stable membership
• Self-regulation works well where the self-regulatory organization (SRO) controls access to a scarce resource
• The difference between unilateral and multilateral self-regulation
• Unilateral self-regulation by internet platforms
• Internet platforms control membership privileges
• Advantages of unilateral self-regulation
• Disadvantages of unilateral self-regulation
• Advantages and disadvantages of unilateral self-regulation
• Advantages
• Disadvantages
• Multilateral self-regulation and SROs
• Conflicts of interest in SRO enforcement
• Self-regulatory rules may not represent the public interest
• Self-regulation and legislative threat
• Example of multilateral self-regulation: the advertising industry
• Advertising SROs control access to television advertising inventory
• Advertising SRO enforcement becomes more difficult on the internet
• Advertising SROs are heavily influenced by state regulation
• Advertising SROs and data privacy
• Advantages and disadvantages of multilateral self-regulation
• Advantages
• Disadvantages
• Co-regulation
• The role of the state in co-regulation
• Co-regulation and accountability
• Preservation of public interest objectives
• Enhanced legitimacy of the rules
• Co-regulation in telecommunications regulation
• Co-regulation in data privacy
• Advantages and disadvantages of co-regulation
• Advantages
• Disadvantages
• Brousseau’s multilevel approach to governance
• Internet requires a “racket and strings” regulatory approach

Better regulation applied to the internet

• Introduction
• Literature on better regulation
• Early scholarship: Breyer, Morrall, Hahn, and Sunstein
• Dieter Helm examines the meaning of “good regulation”
• OECD principles of better regulation
• OECD 2012 recommendation on regulatory policy
• OECD 2011 recommendations on internet policymaking
• Better regulation methodology in the United States
• Peer review by OIRA
• Creating a baseline scenario
• Identifying the relevant harm
• Identifying regulatory options
• Applying cost-benefit analysis to each alternative
• How to quantify costs and benefits
• Benefits and costs that are difficult to monetize
• Better regulation methodology in Europe
• European better regulation guidelines
• 2015 European toolbox for better regulation
• Underlying drivers of problems
• Market failures
• Regulatory failures
• Equity
• Behavioral bias
• Quantify the risk, and determine an optimal level of risk reduction
• Identify policy options
• Narrowing the choice of available options
• The Renda study on cost-benefit analyses
• Quantifying Costs
• Direct costs consist of:
• Indirect costs consist of:
• Quantifying benefits
• Distributional effects
• Areas requiring further study
• Impacts on innovation
• Why internet firms innovate
• Knut Blind explains the link between regulation and innovation
• Adaptive or experimental regulation
• Criticisms of cost-benefit analyses in regulatory decisions
• Robert Baldwin asserts that impact assessments are ill-adapted to political realities
• Radaelli and De Francesco compare United States and European approaches
• Robert Hahn and Paul Tetlock evaluate the costs of regulatory impact assessments in the United States
• Ackerman and Heinzerling criticize cost-benefit analyses that attempt to “price the priceless”
• Greenstone: cost-benefit analyses require experimentation
• Why conduct a cost-benefit analysis?

A methodology for assessing regulatory options

• Bringing it all together
• A regulatory impact assessment that incorporates a cost-benefit analysis
• Who would use the regulatory impact assessment?
• Why would the regulatory impact assessment increase regulatory quality?
• Elements of the methodology
• The questionnaire
• The range of internet intermediaries and actions to help enforce the content policy
• Questions on technical options:
• Remedies used in other countries
• The institutional alternatives, including liability and property rules, self-regulation, co-regulation, and/or full-fledged administrative regulation
• Questions on institutional alternatives:
• The fundamental rights affected by each proposed measure
• Questions on fundamental rights:
• Internet ecosystem
• Questions on the internet ecosystem:
• Behavorial economics and “nudges”
• Questions on behavioral aspects
• Adaptive and experimental regulation
• Questions on adaptive regulation
• A cost-benefit analysis under constraint
• How to deal with hard-to-quantify benefits and costs?
• Contingent valuation or stated preferences
• Cost effectiveness analysis
• Benefit transfer
• Hedonic pricing
• Qualitative scoring
• Qualitative labels
• Conclusion
• Prepare a baseline scenario of no regulatory intervention
• Anticipate technological and market changes
• Defining “success”
• Measuring benefits compared to the baseline scenario
• Choice of non-monetary units to measure benefits
• Breaking benefits into different categories
• The causal link between the regulatory measure and the benefit
• Practical measurement of success
• Identifying the maximum possible benefits
• For each regulatory proposal, estimate the level of benefits between the maximum and minimum
• The direct costs resulting from each proposal
• The indirect costs resulting from each proposal
• Harms to innovation and competition
• Harms to fundamental rights
• Dividing indirect costs into categories
• How to rank proposals
• Applying additional constraints
• Conclusion on how to rank proposals
• Conclusion on cost-benefit analysis
• Public consultation
• Institutional peer review
• Periodic review of the measure
• Conclusion

Strengths and weaknesses of the proposed methodology and areas for future research

• Strengths of the methodology
• Weaknesses of the methodology, and possible responses
• Criticism 1: Interference with democratic debate
• Criticism 2: Conflicts of interest
• Criticism 3: Impact assessments are too expensive and complicated
• Criticism 4: Do not try to quantify the unquantifiable
• Quantifying the unquantifiable

References

Acknowledgments