This chapter offers insights into Australia's digital platform regulation, focusing on the 2021 News Media and Digital Platforms Mandatory Bargaining Code (NMB Code) and the 2024 Treasury's Proposal for a new Digital Competition Regime (DCR). It examines the genealogy, objectives, and design features of both initiatives, highlighting their alignment with international trends alongside uniquely Australian characteristics. By introducing the NMB Code in 2021, and embracing global momentum towards digital ex ante competition regulation, Australia has positioned itself as a policy innovator or exception in the former, and a slow follower in latter. Current reform challenges centre on the proposed News Bargaining Initiative, and, more critically, the long overdue DCR. While the NMB Code serves as a targeted support for local journalism rather than a remedy for market failure, the DCR represents a more comprehensive competition response to the monopolisation of digital platform services and global regulatory shifts.

Artificial Intelligence (AI) dominates the future agenda for digital policy in Europe, and indeed worldwide, even if the AI bubble implosion occurs in 2027. Before we consider the failure in the present to enforce co-regulation in the Digital Services Act (DSA), we must look forward to its future demise due to pressure from AI "tech bros" in the White House. First, DSA's very brief history. In European digital policy, the 1997 Bonn G7 Ministerial Conference Declaration expressed the desire for end-user filtering rather than intermediary liability, reinforced in the 1999 European Commission proposals. This policy led to the e-Commerce Directive 2000 (ECD), which enshrined this principle of the internet host "safe harbor" of non-liability and leaving much detailed regulation via Codes of Conduct to the market actors. Benoit Frydman and Isabelle Rorive establish that it was based on the 1997 German Teleservices Act, though with "slightly more burden on the [internet service providers] in comparison with the former German statute." It was part of a wider move towards co-regulation and away from explicit state command and control regulation. The European Parliament, and in particular Member States France and Germany, have influenced the European Commission in moving from its 2015 Digital Single Market strategy focussed on business regulation, to a DSA package. On 15 December 2020, the European Commission released its proposal for a DSA with the aim of amending the ECD, while maintaining its core principles.

Abstract The regulation of technology has three states that have legal meaning: self-regulation or ‘unregulation’ by industry (whether by individual companies or a collective association); principled co-regulation in which legislative or other legal duties are imposed on industry by government; regulation by government or more frequently a somewhat independent regulator which directly oversees the industry or the function in which a public good resides. In the UK, government has encouraged self-regulation when technologies emerge, co-regulation if there is a clear need for public oversight, and state regulation in specific sectors often imposed by European legal requirement. With Generative AI emerging in the last several years since ‘Brexit’, the UK has had to reassess that approach with Generative AI as a test case. Its approach has been to ‘first, do no harm’ except in the case of disinformation and deepfakes generated by AI. UK government ‘unregulation’ of AI has been aptly termed ‘regulatory hallucination’.

Google and Apple’s smartphone and tablet ‘app’ stores are facing significant antitrust scrutiny in Europe, culminating in enforcement action by the European Commission and specific obligations in the new EU Digital Markets Act. In a field previously dominated by US law and jurisprudence, we review the main European antitrust-related evidence and policy arguments for and against such app store regulation. We further show how this discourse is linked to the heavily-contested policy area of network neutrality.

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This chapter elaborates on challenges and emerging best practices for state regulation of electoral disinformation throughout the electoral cycle. It is based on research for three studies during 2018–2020: into election cybersecurity for the Commonwealth; on the use of artificial intelligence (AI) to regulate disinformation for the European Parliament; and for UNESCO, the United Nations body responsible for education. The research covers more than half the world’s nations, and substantially more than half that population, and in 2019 the two largest democratic elections in history: India’s general election and the European Parliamentary elections. Regulating digital dominance in electoral disinformation presents specific challenges in three very distinctive fields: election law, media law, and mass communications regulation, and targeted online advertising, including data protection law. Implementing best practices against electoral disinformation will require action by EMBs, data protection agencies, communications and media regulators, parliamentary authorities, and ministries of justice and equivalent Neither effective implementation, nor a disinterested assessment of best practice, can be guaranteed. Electoral laws are—like much history—written by the winners, often immediately after their victory. Legal frameworks need to be updated as a response to disinformation challenges discovered during electoral processes, as well as encompassing international best practice. Our ten recommendations for policymakers take account of these imperatives and uncertainties.

The greatest, and certainly to a Westphalian nation-state-centered universe most revolutionary, challenge for regulation is the increasing co-operation between national, regional, and international networks of regulators, to regulate the internet. Reidenberg coined the term “lex informatica” to explain its transnational legal nature, based on Berman and Kaufman’s analysis of mediaeval lex mercatoria, rather than Jessup’s transnational law. This chapter briefly considers the technical standards that permit inter-networking and thus the internet, then examines how standards—including commercial and legal standards—have created a transnational lex informatica. The chapter then focuses on two phenomena of the transnational internet law evolution. The first is governance by contract for all commercial transactions, even those that are ostensibly free of monetary value, in which the contractors are trading private information for advertising revenue. The second is the “open internet,” laws protecting some aspects of network neutrality.

The internet is an interactive communications medium based on a network of networks (about 50,000 autonomous systems) of global reach. Because binary digital code can be used to transport and assemble complex artefacts via the Internet Protocol (IP – after which the internet is named), it can be considered the ‘medium of media’ – many formerly separate communications media are converging on the internet, including newspapers, television and radio, text-based information such as books and journals, and photography. Because the medium is interactive, it has increasingly been used for business – and consumer electronic commerce (e-commerce) – with huge implications for governance. It is the largest repository of human knowledge and information ever assembled. This chapter sets out the directions in which researchers can explore the regulation by and of private actors on the internet. It sets out to answer the case study research questions, grouped as follows. 1. What role has been exactly assigned to or been taken up by what private actors in the regulation and/or enforcement of what issue or problem? 2. What are the reasons or incentives underlying this preference for private regulation or enforcement over public law arrangements or for involving private actors in such arrangements? 3. What goals do such arrangements strive after and how realistic/achievable are these? 4. How ambitious can such arrangements be; what can be realistically expected from private actors? 5. In the case of hybrid arrangements, what is the exact nature of the private/public relation? 6. Do the internet self- and co-regulatory arrangements have a legal foundation, and are specific legal constraints or conditions to be respected? These six are the focus of sections 2 and 3. Section 2 explains the involvement of private actors in internet regulation, notably through co-regulation. The typology of co-regulation may be very familiar to some readers, who may proceed to their evaluation in section 3. The focus of section 4 is the main outstanding research question: how can private or public/private arrangements be regulated with a view to ensuring: • more/sufficient trust and credibility with citizens and stakeholders and the prevention of capture; • ‘internalisation’ of the set rules and therewith support and compliance; • flexibility and evaluation so as to ensure also long-term benefits of self- and co-regulation over public regulation? In this final research question, the interplay between European and national law and policy is a constant concern in such a potentially global sector. Co-regulation has been the dominant legal arrangement for the internet in Europe, and I explore in some depth the implications of co-regulation by corporations such as Google in Europe. I focus on the case study of intermediary liability, in which private enforcement of law is severely challenged by concerns regarding too little liability for privacy and free speech rights. Networks that depart from neutrality to influence individual Internet users’ speech rights (notably the right to receive information free of censorship) can only do so having already invaded their privacy rights in ascertaining how those users access the internet. Within these new arrangements, we must then consider what balancing or trade-offs between public and private interests, also vis-a-vis effectiveness concerns, would such organisation or regulation imply? In section 4, I explain that digital information policy is critically concerned with relationships between existing government–industry actors and ‘prosumer’ groups (ie producers and consumers), whose role in production, distribution and consumption is growing rapidly, and whose motivations and activism are often non-monetary. This is seen as requiring a more sophisticated interdisciplinary method for assessing contributions, motivations and sustainability of the ‘prosumer economy’, the growth of the virtual polity and social communities online, and a new prosumer law and policy to govern the regulation of the digital information ecology. This calls for a new form of consumer and citizen protection, which I term ‘prosumer law’. I explain its application in social networking regulation to conclude the section. In the concluding section 5, I argue that internet regulation’s specialisation in Europe, and the failure of mainstream regulation and competition law to fully absorb the insights of that scholarship, has led to tension. I further propose that the debate surrounding nudges and privacy affecting competition outcomes has yet to reinvent the 1990s wheel of nudge limitations. Prosumers can only affect outcomes at the margins, while it is private enforcement that really creates a transnational internet law and shapes the regulatory environment. Learning more internet regulatory history can help competition and regulation scholars herald and shape the arrival of prosumer law.

This guide explains how cybersecurity issues can compromise traditional aspects of elections, such as maintaining voter lists, verifying voters, counting and casting votes and announcing results. It also describes how cybersecurity interacts with the broader electoral environment and new ways elections are being carried out, such as campaigns and data management by candidates and parties, online campaigns, social media, false or divisive information, and e-voting. Unless carefully managed, all these cybersecurity issues can present a critical threat to public confidence in election outcomes – which are the cornerstone of democracy.

The 2020s will finally be the decade of cyberlaw, not as ‘Law of the Horse’, but as digital natives finally help bring the law syllabus, legal practice and even legislatures into the Information Society. In the first part of the chapter, I explain how the cyberlawyers of the 1990s dealt with regulation of the then novel features of the public Internet. Internet law was a subject of much interest in the 1990s in the US, and some specialist interest in UK and Europe. In Part 2, I explain the foundational rules for the adaptation of liability online initially focussed on absolving intermediaries of legal responsibility for end user posted content. This exceptionalist approach gradually gave way. While some US authors are hamstrung by a faith in the myth of the superuser and somewhat benign intentions of corporations as opposed to federal and state government, there has been a gradual convergence on the role of regulated self-regulation (or co-regulation) on both sides of the Atlantic. In Part 3, I argue that the use of co-regulation has been fundamentally embedded since European nations began to enforce these rules, with limited enforcement in which judges and regulators stated that business models largely focussed on encouraging illegal posting would not be protected. Settled policy on liability, privacy, trust, encryption, open Internet policies against filtering, were arrived at as a result of expert testimony and exhaustive hearings. In the final Part 4, I argue that hanging those policies on a whim results in potentially catastrophic results in terms of untying the Gordian knots of intermediary safe harbour/harbor, privacy, copyright enforcement, and open Internet European regulations.

Within the European Union (EU), online disinformation has been addressed from a variety of regulatory angles. Legislation and policy initiatives against defamation, incitement to hatred and violence, or banning certain misleading advertising techniques all seek to limit the spread of disinformation. Moreover, within the context of electoral campaigns, the problem can be tackled by regulating the spending and transparency of political campaigns, enforcing data protection rules and bolstering against cyberattacks. More broadly, institutional support is also provided to safeguard media pluralism, encourage fact-checking and enhance media literacy.

in Martin Moore & Damian Tambini (eds.) Dealing with Digital Dominance (OUP 2021) 195-220 doi:10.1093/oso/9780197616093.003.0012This chapter elaborates on challenges and emerging best practices for state regulation of electoral disinformation throughout the electoral cycle. It is based on research for three studies during 2018-20: into election cybersecurity for the Commonwealth (Brown et al. 2020); on the use of Artificial Intelligence (AI) to regulate disinformation for the European Parliament (Marsden & Meyer 2019a; Meyer et al. 2020); and for UNESCO, the United Nations body responsible for education (Kalina et al. 2020). The research covers more than half the world’s nations, and substantially more than half that population, and in 2019 the two largest democratic elections in history: India’s general election and the European Parliamentary elections.

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This article examines how governments can regulate the values of social media companies that themselves regulate disinformation spread on their own platforms. We use ‘disinformation’ to refer to motivated faking of news. We examine the effects that disinformation initiatives (many based on automated decision-making systems using Artificial Intelligence [AI] to cope with the scale of content being shared) have on freedom of expression, media pluralism and the exercise of democracy, from the wider lens of tackling illegal content online and concerns to request proactive (automated) measures of online intermediaries. We particularly focus on the responses of the member states and institutions of the European Union. In Section 1, we argue that the apparent significance of the threat has led many governments to legislate despite this lack of evidence, with over 40 national laws to combat disinformation chronicled by March 2019. Which types of regulation are proposed, which actors are targeted, and who is making these regulations? Regulating fake news should not fall solely on national governments or supranational bodies like the European Union. Neither should the companies be responsible for regulating themselves. Instead, we favour co-regulation. Co-regulation means that the companies develop – individually or collectively – mechanisms to regulate their own users, which in turn must be approved by democratically legitimate state regulators or legislatures, who also monitor their effectiveness. In Section 2, we explain the current EU use of Codes of Conduct. In Section 3, we then explain the relatively novel idea that social media content regulation, and specifically disinformation, can be dealt with by deploying AI at massive scale. It is necessary to deal with this technological issue in order to explain the wider content of co-regulatory policy options, which we explain and for which we argue in Section 4. In Section 5 we explain what this means for technology regulation generally, and the socio-economic calculus in this policy field.

HAL is a multi-disciplinary open access archive for the deposit and dissemination of scientific research documents, whether they are published or not. The documents may come from teaching and research institutions in France or abroad, or from public or private research centers. L’archive ouverte pluridisciplinaire HAL, est destinée au dépôt et à la diffusion de documents scientifiques de niveau recherche, publiés ou non, émanant des établissements d’enseignement et de recherche français ou étrangers, des laboratoires publics ou privés. D4.1 Outline Overviews of Tasks R4.1-R4.4: Regulatory and governance methodologies Chris Marsden, Alison Powell, Elena Pavan, Meryem Marzouki

Seeking to remedy bad legislation with good science.

The vision of openlaws.eu is to make access to justice easier for citizens, businesses and legal experts. For this purpose an innovative legal information platform has been designed by the openlaws.eu project, considering the needs of various stakeholder groups as well as the latest developments in technology and our information society. Legal tech is a new terms for new technology that can be appliedt to legal information in order to create better access and better understanding of the law. However, just because things can be done, does not mean that they are automatically done. Financial and organisational restricitions and the lack of compentency can be a deal-breaker for innovation. Open data, open innovation and open source software can be a potential solution to this problem, especially when combined to one coherent ecosystem. openlaws.eu has developed a prototype platform upon these new open concepts.