Introduction

Update: CREATe and AHRC PEC published a policy brief “The birth of neo-regulation. Where next for the UK's approach to platform regulation?” by Martin Kretschmer and Philip Schlesinger (23 November 2021), followed by an interview with TECHReg TV: UK’s Platform Regulations Need More Scrutiny (16 February 2022): https://www.pymnts.com/news/regulation/2022/uks-platform-regulations-need-more-scrutiny/

In 2023, the next phase of research will be scoped as part of CREATe's Policy Futures series.

Research Team at the Launch Event

 

 

 

New directions in platform regulation research

The University of Glasgow’s Platform Regulation project was officially launched on 26^th February 2020.  New empirical research, conducted as part of the AHRC-funded Creative Industry Policy and Evidence Centre’s (PEC) programme of work, was presented during a Conference hosted by the British Institute of International and Comparative Law (BIICL) in Russell Square, London.

Introducing the session, the research team – Prof. Martin Kretschmer, Prof. Philip Schlesinger and Dr Ula Furgal (from research centres CREATe and CCPR) – provided an overview of its mapping of the platform regulation scene in the UK. It has focused on a single jurisdiction, as this provides a starting point and test-bed for a new approach to understanding how global trends affect platform regulation in a given state.

To comment on the research, as well as to explain their various perspectives, the research team was joined by representatives of five key UK agencies:

• Ofcom (Kate Davies, Strategy and Policy Director)
• Competition and Markets Authority (Mark Basile, Assistant Director, Markets)
• Information Commissioner’s Office (Sallie Spilsbury, Principal Policy Adviser, Digital Economy Team)
• Intellectual Property Office (Ros Lynch, Copyright and IP Enforcement Director)
• Centre for Data Ethics and Innovation (Stephen Dunne, Senior Policy Advisor)

 

The focus of the analysis

The team's UK mapping study proceeded in two steps. First, a (quantitative) content analysis of eight official UK reports published between 2018 and 2020 was performed. Secondly, the diverse competencies of regulators mentioned in the reports were analysed, in particular for their statutory basis (including the extent to which they rely on EU Law), their duties and the processes they follow.

The eight reports providing the primary sample for analysis cover a period of 18 months:

• Ofcom discussion paper: Addressing harmful online content: A perspective from broadcasting and on-demand standards regulation (September 2018)
• Cairncross Review (DCMS): A sustainable future for Journalism (February 2019)
• House of Commons DCMS Committee: Disinformation and ‘fake news’ (February 2019)
• House of Lords Communications Committee: Regulating in a Digital World (March 2019)
• Furman review (Treasury & BEIS): Unlocking digital competition (March 2019)
• Online Harms White Paper (DCMS & Home Office) (April 2019)
• CMA market study: Online platforms and digital advertising (interim report) (December 2019)
• Centre for Data Ethics and Innovation: Review of online targeting (February 2020)

The reports mention relevant regulators, and the picture that emerges is one in which different duties, capacities, and powers are prioritised. It is clear that many agencies play into the regulatory space in quite different ways. We can distinguish between ‘classic’ regulators, who have a clear statutory basis and are accountable to Parliament, such as the Information Commissioner’s Office (ICO), the Competition and Markets Authority (CMA) and Ofcom. Other regulators, such as the Advertising Standards Authority (ASA) have derived authority.  Again other bodies, notably the Intellectual Property Office (IPO) and the Centre for Data Ethics and Innovation (CDEI) (which do not consider themselves as regulators), along with the Internet Watch Foundation (IWF), and Counter-Terrorism Internet Referral Unit (CTIRU) have a significant presence in shaping regulation.

 

Regulatory perspectives

 

 

Representatives from five agencies addressed the early findings of the mapping study during the discussion that concluded the session.

The international dimension of platform regulation was underlined by regulators themselves. Mark Basile (CMA), noted that the CMA speaks to many countries in order to build an international consensus, including Germany, the Netherlands, Japan, Australia, and the United States. He added that there are also initiatives occurring at the national level, although these may not be visible to the public. A recent example of cross-agency work is the Digital market taskforce, headed by CMA with officials from Ofcom and ICO.

Kate Davies (Ofcom), agreed that the global nature of platforms means that regulation will require international cooperation so international engagement is essential. Stephen Dunne (CDEI), emphasised that the newly-established Centre for Data Ethics and Innovation is not a regulator, but an independent expert advisory board. However, as he noted, “the mission of the CDEI is to maximise the benefits of data-driven technology, and ensure they are distributed widely and fairly across society, including through supporting the creation of appropriate governance and regulatory systems.”

Similarly, Dr Ros Lynch (IPO), stressed her organisation’s role in supporting innovation, that the IPO has no relevant regulatory powers and should not be considered to be a regulator. At the same time, however, copyright issues result in most content takedowns online, which makes the IPO highly relevant to the scope of enquiry.

With many agencies already firmly in play, it is striking that all the official documentation analysed recommends both more regulation and more regulators. The first step, however, does not seem likely to proliferate new bodies.  Following the government’s response to the Online Harms White Paper, Ofcom is evidently set to become the Online Harms Regulator.

 

 

The harms agenda

The content analysis of the reports produced a long and diverse list of harms. Dr Furgal presented a list that included well over 80 ways of describing online harms that are said to need addressing. A wide range of factors has generated this agenda, not least societal, political and economic changes – in the latter case, specifically competition concerns. Terrorism, fake news and child-related harms dominate the contemporary picture.

Prof. Schlesinger noted that when you are faced with the cumulative impact of lists of dozens of harms and multiple issues, the overall effect is rather overwhelming. Because of their interconnectedness, it is truly difficult to put every harm and issue neatly into appropriate boxes. Not many harms can be easily matched with a particular area of law, with considerable amount of harmful behaviour currently identified as not falling under existing law.

 

Harms, hazards, opportunities

Prof. Schlesinger further observed that the sheer range of what it is currently proposed to be regulated leads to what you might call the ‘super-regulator challenge’. A pressing question is: can any single body meaningfully act as the coordinator of this range of regulatory activity?

Reflecting on the online harms listed, Stephen Dunne (CDEI) noted that the scale of harms was not actually known, since considerable information asymmetries existed. Platforms lack transparency. He saw this as an indication that regulators need strong information-gathering powers. In this context, he thought it may be more productive to talk about hazards than harms.

Summarising the findings of the mapping exercise, Prof. Kretschmer identified what he called “epistemic gaps” in the regulation of platforms.

First, the current agenda as set out in the eight reports focuses more on harms than on the processes that might address these. There is little consideration of how harmful content should be identified, removed and prevented, and what redress and reporting mechanisms will become available. Reflecting on this observation, Kate Davies (Ofcom) noted that the White Paper sets out a system of process regulation and that a key challenge would relate to balancing freedom of expression with consumer protection, though this was one area where Ofcom had some experience. Sallie Spilsbury (ICO) observed that certain regulation-by-design opportunities exist, such as making privacy settings a default.

The further development of codes of conduct or of practice has been suggested in a majority of the analysed reports. Agencies’ representatives gave examples of two success stories of such codes. First, Ros Lynch (IPO), pointed to the voluntary Code of Practice on Search and Copyright, agreed between representatives of the creative industries and leading search engines Google and Bing, facilitated by the IPO. Secondly, Sallie Spilsbury (ICO) pointed to the ICO’s Age Appropriate Design Code, a code of practice for online services, which, when in force, will require services to make high privacy settings a default where users are children (unless providers can demonstrate a compelling reason for a different default setting taking into account the best interests of the child).

As a second skew, Prof. Kretschmer then noted the focus on a small number of multinational firms. As the analysed reports demonstrate, the regulatory landscape in the UK has become shaped as a response to perceived social and economic harms caused by the activities of two companies, Google and Facebook. The corpus analysed shows that 3320 (76%) of 4325 references to firms are to these two US firms and their subsidiaries: Google (including YouTube) tallied 1585 references whereas Facebook (including Instagram, WhatsApp and Messenger) clocked up 1735. Only two platforms headquartered in Europe are mentioned in current official discourse (Spotify and Ecosia), Chinese firms are referenced 61 times, and absolutely no UK firms feature. This points to a structural problem in how the field is constructed.

Reacting to this observation, Mark Basile emphasised that focusing CMA’s report on the activities undertaken by Google and Facebook was justified in the context of digital advertising, since they are the players that control the major share of the market.

A key message from all the agencies was to reframe the challenge from one of controlling harms to finding new opportunities. Ofcom’s Kate Davies noted the potential stemming from technological developments, in terms of new approaches and regulatory tools. CMA’s Mark Basile observed that digitisation and platforms had in many respects changed our lives for the better, and that we now needed to work on viable solutions. Stephen Dunne (CDEI) agreed, and reported having found evidence that the public values the benefits of platforms. Sallie Spilsbury (ICO) argued that the goal should be to build “a landscape that can be trusted”.

 

 

Where next?

As third epistemic gap, Prof. Kretschmer noted the lack of focus on cultural production in current official thinking. He observed that platforms act as the new gate-keepers for cultural content, having control over rankings, recommendation algorithms, and that they greatly influence remuneration flows to primary creators. To date, the effects of platform regulation on the creative industries has not received much-needed attention.

Concluding, Prof. Schlesinger noted that what we are currently observing is the formation of a new regulatory field. Multiple regulatory initiatives are being taken. The bodies taking those initiatives know about each other. But the current extent of cooperation and what scope there is for future convergence over common issues, still remains to be seen, not least given the pace of change. We also need to remember the unquestionably crucial international dimension that all present regulatory initiatives have.

 

Programme for Launch Event

 

 

Further Reading

Kretschmer, M., Furgał, U., Schlesinger, P., The emergence of platform regulation in the UK: an empirical-legal study, PEC Discussion Paper and CREATe Working Paper (2 June 2021); revised version published 2022 in Weizenbaum Journal of the Digital Society – special issue: “Democracy in Flux – Order, Dynamics and Voices in Digital Public Spheres”.

Kretschmer, M. & Schlesinger, P., Regulating a platform economy, AHRC Creative Industries Policy & Evidence Centre (PEC): https://pec.ac.uk/blog/regulating-a-platform-economy (25 March 2019)

Kretschmer, M., New empirical research on Intellectual Property Litigation and Platform Regulation, The IP Kat blog: http://ipkitten.blogspot.com/2020/02/guest-post-new-empirical-research-on.html (18 February 2020)

Schlesinger, P., The changing shape of platform regulation, LSE blogs: https://blogs.lse.ac.uk/medialse/2020/02/18/the-changing-shape-of-platform-regulation/ (18 February 2020)

Vile, R., CREATe/BIICL conference report: Mapping Platform Regulation in the UK , The IP Kat blog: http://ipkitten.blogspot.com/2020/03/guest-post-createbiicl-conference.html (2 March 2020)

Kretschmer, M., UK sovereignty: A challenge for the creative industries, Westminster Media Forum (16 July 2020)

Schlesinger, P., Witness at Hearing of Digital, Culture, Media and Sport Committee on The future of public service broadcasting (17 November 2020)

Schlesinger, P., Why regulating the public sphere matters more than ever, AHRC Creative Industries Policy & Evidence Centre (PEC) (27 November 2020)

Kretschmer, M., Gating the Gatekeepers, AHRC Creative Industries Policy & Evidence Centre (17 December 2020)

Eben, M., Gating the Gatekeepers (2): Competition 2.0?, CREATe blog (23 March 2021)

Kretschmer, M., Furgał, U., Schlesinger, P., The Regulation of Online Platforms:Mapping an emergent regulatory field, PEC Policy Brief (2 June 2021)

Flew T., Schlesinger P., Digital Platforms: Regulation and Governance, CREATe blog (22 June 2021)

Eben, M., The interpretation of a ‘Strategic Market Status’: A response to the public consultation by the UK Government on ‘A new pro-competition regime for digital markets’. CREATe working paper 2021/10 (November 2021)

Schlesinger, P., The neo-regulation of internet platforms in the UK. CREATe working paper 2021/11 (November 2021)

Kretschmer, M. and Schlesinger, P., The birth of neo-regulation. Where next for the UK’s approach to platform regulation? AHRC Creative Industries Policy & Evidence Centre (PEC) Policy Brief (November 2021)

Peukert, A., Husovec, M., Kretschmer, M., Mezei, P., Quintais, J.P. (2022) European Copyright Society – Comment on Copyright and the Digital Services Act Proposal
IIC - International Review of Intellectual Property and Competition Law