| 'All codes of conducts should pay service (not lip service) to the protection of human dignity.' |
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I would argue that self-regulation, in a framework of viable default rules, can be used to satisfy efficiency and to serve justice.
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In this spiked-debate's positioning papers, Sandy Starr assumes that efficiency and justice do not (or cannot) march together. The starting point is that due to unbalanced positions, a contract will 'always' be unfair.
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The symmetric position of David Stoll assumes that it is too easy to cause large damages in a few moments, and only self-regulation can work out efficient solutions.
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Stoll is right to say that 'self-regulation is the route to go, not any particular regulatory system'. Still, his point does not challenge Starr's fundamental statement that self-regulation leaves 'individuals with no freedoms on the internet except to subscribe to terms dictated by parties with vested interests'. Both authors assume that contracts float in a vacuum, and this is the conventional wisdom.
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Oversimplifying, all they say is correct. However, we must consider also the framework for self-regulation. Self-regulation can work if there is both a default rule urging for its fine tuning (via contract), and a common sharing of values upon which to build the needed exceptions and safe harbours.
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The default rule is a liability rule for the internet service provider (ISP). According to Article 14 of the European Ecommerce Directive, ISPs are 'liable for the information stored at the request of' a content provider unless:
- the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
- the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.'
Both the practical timing for action and the proper notions of actual knowledge and awareness seem to be missing. However, self-regulation can only build on this default rule, and take into account that courts are already empowered to apply liability rules. This is the fear that drives European industry towards self-regulation.
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Default rules, for reasons not easy to examine here, could have been framed only in economic terms. Nevertheless, the sharing of values for self-regulation can be read not only in an economic frame.
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Both default rules and contracted exceptions must be reasonable solutions within the limits of the supreme protection for human dignity and liberties. Article 16 (e) of the Ecommerce Directive urges 'the drawing up of codes of conduct regarding the protection of minors and human dignity' . The tenth recital makes human dignity a cornerstone of the directive.
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It is rather clear that all codes of conducts should in any event pay service (not lip service) to the protection of human dignity. Therefore, the answer to the question posed in this debate can be neither 'no', because self-regulation is certainly 'legitimate' (lawful); nor just a 'yes', without qualifications.
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Putting the question slightly differently - is self-regulation proper? - the answer is: 'It really depends.' On what?
- Who the content providers are. Individuals posting their own thoughts, maybe using their creativity to manipulate others' (copyrighted) work? Pirates? Large companies?
- Who the rightsholders are. Individuals with little or no competence in copyright law? Small or large stakeholders with good lawyers working for them?
- What the values at stake are. Only large economic values? Or civil liberties?
- Who has more (economic) resources. Is the rightsholder, the content provider or the ISP in a better position?
Above all, it depends on:
- What is the legal framework in which we conceive self-regulation protecting copyright on the internet?
Correct answers to these issues pave the way to both fair and efficient solutions.
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Giovanni Comandé is chair of the Southern Europe RightsWatch Working Group, a member of the Italian bar and of the New York state bar, and professor of comparative law at the Sant'Anna School of University Studies and Doctoral Research.
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