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Digital Platforms: Regulation and Governance

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Digital Platforms: Regulation and Governance

By 22 June 2021No Comments

At CREATe, our work on platform regulation has gathered pace, writes Philip Schlesinger.

Recently, we published our take on the emergence of platform regulation in the UK. Our research is to be found in a simultaneously published CREATe Working Paper and a PEC Discussion Paper, authored by Martin Kretschmer, Ula Furgał and Philip Schlesinger. In our analysis, we have charted the development of a complex and shifting regulatory agenda and steps taken in the deployment of a field of organisational players. Alongside our full-length study we also published a Policy Brief: this handily encapsulates our analysis for the wider policy community. And for those who wish to track back to see the development of our research, this has been recorded on our Platform Regulation resource page.

Since we embarked on this programme of work, we have been pleased to host related research. Leighton Andrews’ prescient, probing and detailed analysis of the incremental and incomplete steps taken to regulate Facebook is a case in point, and is on our website.

On this occasion, taking a comparative, international perspective, we provide a link to a recent panel discussion on platform regulation and governance, convened and moderated by Terry Flew, Professor of Digital Communication and Culture, University of Sydney. At our invitation, he has contributed the following scene-setting account of the panel’s deliberations.

At the 71st Annual (virtual) Conference of the International Communications Association (ICA), a panel discussed the theme of Regulation, Policy and Governance: Unpacking Keywords in Digital Communications Policy.

The panel aimed to critically analyse various measures being proposed by nation-state governments to institute new laws and regulations governing the conduct of digital platforms. The panel also focused on the shifting balance between regulation and governance across national jurisdictions, with reference to the growing involvement of nation-state agencies as regulators of platform markets, content and conduct.

Speakers were Philip Schlesinger (CCPR and CREATe, University of Glasgow, UK); Philip Napoli (Duke University, USA); Minna Horowitz (University of Helsinki, Finland); Pawel Popiel (Annenberg School of Communication, University of Pennsylvania, USA); and Terry Flew (University of Sydney, Australia).

Philip Schlesinger focused on two issues. First, he argued if we want to locate regulatory questions in capitalist democracies we should position these in the present ‘post-public sphere’, which is characterised by agonistic politics and a crisis of traditional media ecologies, as well as a ‘New Cold War’ coupled with the rise of tech nationalism. Second, drawing on his joint work with Kretschmer and Furgał, he noted how the UK’s new regulatory field was intended to handle issues thrown up by digital platforms. The agenda had emerged from diverse reports into competition, online harms and digital rights. He also noted that this process is taking place when platform regulation is being publicly addressed in many states, although the outcomes are diverse. Consideration of the regulatory field, he maintained, needs to consider both the national and international dimensions of current debates.

Philip Napoli drew attention to the problem of misinformation and argued that antitrust measures have only a limited capacity to address such issues, as they focus more upon innovation issues and economic outcomes rather than the vitality of communications infrastructure and the democratic public sphere. In the US, he noted a degree of ‘flailing about’ to find a suitable institutional framework for regulation, particularly as the Federal Communications Commission (FCC) has spent recent decades disavowing its role in Internet governance and platform regulation. He drew attention to the capacity of regulation to concentrate the market power of the leading social media incumbents due to the costs of compliance with legal and regulatory mandates.

Minna Horowitz’s specific focus was on the role of public service media (PSM) in the new environment. Referring to European initiatives around PSM, she asked whether these national entities would have a place in a global digital platform landscape. This raises questions as to whether they are understood as public service broadcasters (PSBs) servicing a primarily national audience, or whether they can become truly multi-platform entities. Her case studies include the debate about public value and the BBC, and the role of PSM in the face of disinformation and platform power with a broader innovation mandate and capacity to collaborate with multiple stakeholders.

Pawel Popiel discussed ‘policy siloes’ in the burgeoning international regulatory debates. Reviewing 40 policy reports looking at possible regulatory frameworks for digital platforms derived from multiple concerns, he noted that one challenge is that the platform landscape includes very different entities with quite different degrees of power and communicative influence, and that there is also competition with incumbent actors (e.g. traditional media conglomerates). He identified the following:

  1. Spatial siloes, or disconnects between particular policy arenas (e.g. competition policy and content regulation);
  2. Temporal siloes, or disconnects between policy interventions at particular moments (e.g. antitrust versus utility regulation);
  3. Problem object siloes, or the tendency to focus on individual dominant actors (e.g. Google, Facebook) rather than broader sectoral issues (e.g. behavioural targeting);
  4. Sectoral siloes, or a focus on particular sectors rather than on interconnections within a particular field;
  5. Value siloes, or conflicts between particular value goals in different regulatory approaches (e.g. promotion of competition in data-driven industries versus data as a public resource or consumer protection of data rights).

Terry Flew discussed the conceptual distinction between regulation and governance in debates addressing digital platform power. Today’s tendency is to argue that the debate is about governance, and that regulation is a ‘twentieth-century’ or ‘traditional media’ concept. Governance is seen as bringing in non-state actors and alternatives to ‘command-and-control’ regulation, but regulators today certainly account for regulatory strategies that include polycentric governance and the use of behavioural techniques (‘nudges’) by contemporary government agencies. Terry Flew instead proposes that regulation is a term best used when external third parties are engaged with the governance practices of digital platforms – most notably through state laws and policies – whereas governance is an inherent feature of digital platforms. There is currently a mix of state regulations and hybrid modes of governance emerging (e.g. the Facebook Oversight Board).

The discussion among panel members focused on four questions:

1. Why is there so much talk about platform regulation at this moment?

Reasons identified included the impact of misinformation and electoral disruption in liberal democracies, national security concerns, recognition of the power of platforms to manage civic discourse, and challenges to the liberal rules-based order. Digital rights activism is also on the rise, and there is a divide between those NGOs comfortable with ‘business-as-usual’ and more radical demands internationally. There is also some impact of academic research on policy formation, and greater attention given to the negative sides of platform power in tech journalism and the media more generally, especially post Cambridge Analytica.

2. Should the focus be upon the creation of new agencies or expanding the remit of existing entities (e.g. Ofcom in the UK, the FCC in the US)?

Philip Napoli noted that the most obvious agency for such regulation in the US, the FCC, has ‘sliced itself out of the digital space’. Advancing through other agencies such as the Federal Trade Commission creates real barriers to addressing issues such as the crisis of democratic communication or data governance issues. Pawel Popiel also observed the extent to which the FCC has been ‘captured’, even though it is the obvious entity in the US context. Philip Schlesinger noted ‘creeping incrementalism’ in the UK, where both the expansion of existing regulatory remits and the creation of new agencies are being proposed. Behind much debate lurks the idea of  a ‘super-regulator’ to resolve the gamut of problems. Meantime, existing agencies such as Ofcom and the CMA capture priority areas such as online harms or competition policy.

The importance of path dependency in regulatory institutions and the distinctive political cultures of nations and regions was noted. As a result, expediency is pointing towards expanding the remit of existing agencies, even if the underlying logic of new challenges points towards the need for new agencies.

3. What is the relationship of new policies proposed for digital platforms to the existing laws, institutions and regulations of media policy and what are sometimes termed ‘legacy media’?

Minna Horowitz noted that in smaller countries, public service media perform a vital range of cultural and language policy functions that are not easily taken up by commercial digital platforms, even if there was the will to do so. This points to a need for PSM innovation, but this comes up against the extent to which PSM find themselves subject to political whims, as well as the tendency to view these institutions primarily as broadcasters.

There has also been a reorganisation of media companies as political lobbyists, who have increasingly played a nationalist card (as in Australia) against foreign platform multinationals. There is also the challenge of competing business models between legacy media and platforms, and the ongoing shift of advertising revenues to platforms. There may be, for instance, legislation to restrict the use of behavioural targeting by some platform businesses (e.g. Facebook’s harvesting of user data), which links up to inter-capitalist competition as when Apple and Microsoft want stronger privacy protections.

4. Is this moment of ‘regulatory activism’ one that will pass, or is it an ongoing feature of policy intervention in liberal democracies, that will be relevant a decade from now?

Philip Schlesinger argued that the rise of digital platforms is connected to a wider crisis of legitimacy of the liberal-democratic state, which will continue to see measures to address the powers of platforms in ways that go beyond governance, which is just ‘the icing on the cake’. Philip Napoli saw parallels between the gun control debate in the US and the continuing sense of crisis that surrounds US elections, in that powers that appear to be legally sanctioned are clearly being misused.

Pawel Popiel saw three fronts in the policy space: data, competition, and content. These three elements are being addressed at a national level, but there are ongoing conversations among regulators around the world to learn from one another in creating and enforcing new laws. The politics are complex since in some instances platforms promote regulation for reasons of competitive advantage, e.g. power to take down content at volume as a benefit for incumbents.

The full panel discussion can be viewed here: