Self-regulatory Regime Research Articles

Toxic recommender algorithms: immunities, liabilities and the regulated self-regulation of the Digital Services Act and the Online Safety Act

ABSTRACT With focus on toxic recommender algorithms, the article argues that the platform immunities granted in the early 2000s are incompatible with the regulated self-regulation of the EU Digital Services Act 2022 [DSA] and the UK Online Safety Act 2023 [OSA]. Whilst the DSA/OSA’s regimes recognise platforms as active shapers of the online content sphere, the immunities remain stuck in the early view of the same platforms as passive providers of neutral infrastructure and so as innocent messengers. Thus the immunities continue to shelter platforms from liability for harm caused by their toxic-but-profitable algorithms that the DSA/OSA seek to restrain. The tension between the two regimes may be resolved by restricting the immunities to truly neutral platforms, that is those not substantially invested in the content they are meant to regulate. For all other platforms the DSA/OSA self-regulatory regimes and standard liabilities could and should run in parallel.

Regulating misleading political advertising on online platforms: an example of regulatory mercantilism in digital policy

ABSTRACT Since its Joint Communication on Hybrid Threats, the EU has publicly recognized the risks to its security posed by non-traditional means aimed at undermining its legitimacy. The propagation of disinformation including misleading political advertising serves as a key example of how the Commission’s perception of the EU’s vulnerability to hybrid threats in times of geopolitical instability is shaping its regulatory policies. This article uses the framework of regulatory mercantilism, which argues that in conditions of perceived vulnerability, a state-like actor will reassert regulatory control based on a security logic in areas previously characterized by self-regulatory regimes. This article considers the Commission’s 2019–2024 priorities, and how the spheres of technology, security, and democracy policies are intersecting as a response to hybrid threats. As a result, online platform governance in the EU is being substantially restructured with a move from systems of self-regulation to co-regulation backed by sanction as a means of combating hybrid threats online. The Commission’s “taking back control” from platforms in the context of a digital sovereignty agenda serves as an example of regulatory mercantilism in digital policy, which sees the Commission seek to promote regulatory strength in response to perceived vulnerability.

Enhanced self-regulation: The case of Facebook’s content governance

Content regulation on digital platforms has become a contested issue on the public and scholarly agendas. To understand how digital platform providers experiment with making commitments regarding their regulation, this article process-traces Facebook’s content regulation to ask how it self-regulates despite constant pressures for policy intervention. The first part of the article shows how Facebook moved from its initial “thin” self-regulatory regime toward what I call “enhanced self-regulation,” which relies on first-party and independent third-party intermediaries. Thereafter, I show how Facebook self-regulated the balance between public and private interests over time and across the regimes. The findings suggest that powerful actors such as Facebook can innovate in self-regulation by reallocating content-related responsibilities to intermediaries and subsequently create polycentric governance regimes. Lessons about how self-regulators that face public criticism can make more credible commitments to public interests are then drawn from the strengths and weakness of enhanced self-regulation.

Ethics, Rule of Law and Pandemic Responses

The argument recounts a growing dissatisfaction with ethics and principled design as either the single or primary self-regulatory regime ensuring responsible data use and trustworthy AI. From this foundation it proposes rule of law compliance as a parallel and supportive normative and operational direction to address the deficiencies likely in any over-reliance on ethics regulation. In expressions of resistance to COVID responses there is scant community confidence in assertions that ethical reflections answer the deeply felt and differentially identified reservations regarding surveillance and data usage in pandemic responses. It is concluded that without the essence of democratic participation, in the form of citizen connection with emergency policymaking, and potential actionability through legal remedies if rights and liberties are compromised (both features of ‘thick rule of law’), then the regulatory legitimacy crisis facing principled regulatory regimes remains.

Introduction to the Special Issue: Digital Inequalities and Discrimination in the Big Data Era

Introduction to the Special Issue: Digital Inequalities and Discrimination in the Big Data Era

The Ruggie Framework, Tort Law and Business Human Rights Self-Regulation: Increasing Standards through Mutual Impact and Learning

This article discusses the relationship among John Ruggie's 'Protect, Respect and Remedy Framework' and the the UN Guiding Principles on Business and Human Rights, tort law and transnational business human rights self-regulation. In a first step, it highlights the parallels between the recent attempts to impose human rights obligations on transnational corporations, as laid down in the Ruggie Framework and Guiding Principles, and tort law principles, doctrine and interpretation, in light of recent development related to the specific responsibilities of parent companies for their subsidiaries' activities and of core companies for their supply chains. In a second step, it analyses the potential for progressive mutual impacts and mutual learning not only between tort law and public international soft law but especially with regard to the legal effects of transnational (self-regulatory) regimes and best practices. The article argues that these transnational (self-regulatory) regimes and best practices constitute legal minimum standards, particularly with respect to corporation-wide or supply chain-wide tortious responsibility. Thus, the interplay between the Ruggie Framework and Guiding Principles, transnational business self-regulation and tort law could lead to an upward helix development of the consideration of human rights in corporate practice and in raising legal requirements for parent and core companies.

Speech, Harm, and the Duties of Digital Intermediaries: Conceptualizing Platform Ethics

ABSTRACTThis article poses the following questions: Do digital intermediaries (sites such as Facebook or Twitter) have a duty to prevent or ameliorate harm to victims of vile speech? Or do they have a duty to ensure that as much speech as possible gets published on their platforms? To dissect this dilemma, this article offers ethical rationales behind these competing goals. The rationale for promoting speech is founded on a concern for the facilitation of discourse democracy, while the rationale for preventing harm is based on a concern for human dignity. The article concludes by discussing issues of accountability in digital intermediaries’ self-regulatory regimes.

The Ruggie Framework, Business Human Rights Self-Regulation and Tort Law: Increasing Standards through Mutual Impact and Learning

ABSTRACTThis article discusses the relationship between John Ruggie's ‘Protect, Respect and Remedy Framework’ and the UN ‘Guiding Principles on Business and Human Rights’, tort law and transnational business human rights self-regulation. In a first step, it highlights the parallels between the recent attempts to introduce human rights obligations to transnational corporations, as laid down in the Ruggie Framework and Guiding Principles, with tort law principles, doctrine and interpretation. It thereby considers recent developments related to the specific responsibilities of parent companies for their subsidiaries' activities and of core companies for their supply chains. In a second step, it conceptualises the potential for progressive mutual impact and mutual learning, not only between tort law and public international soft law, but especially with regard to the legal effects of transnational self-regulatory regimes like codes of conduct and best practices. The article elaborates that these transnational self-regulatory regimes and best practices have the capacity to constitute legal minimum standards of care and, in particular, standards concerning corporation-wide or supply chain-wide tortious responsibility. As a consequence, the interplay between the Ruggie Framework and Guiding Principles, transnational business self-regulation and tort law could lead to an upward helix development of the consideration of human rights in corporate practice and in raising legal requirements for parent and core companies.

Self-Regulation and Competition in Privacy Policies

AbstractI investigate alternative explanations for the content of privacy policies. Under one model of self-regulation, firms signal their privacy protections to consumers by highlighting compliance with third-party guidelines. However, in a sample of 249 policies, only 27 percent claim compliance with a specific guideline, and the policies that do claim compliance with at least one guideline are generally inconsistent with its requirements. Alternatively, under a market-based mechanism, firms incorporate consumers’ preferences directly. Consistent with this influence, there are several intuitive differences in terms across markets. Adult sites—none of which claim certification—are much more likely to give concise and clear notice of privacy practices and limit data sharing with third parties, while cloud-computing sites are particularly likely to follow stringent data security standards. Overall, privacy policy content appears to be shaped at least as much by market forces as by a self-regulatory regime ...

Regulating the Activities of Oil Multinationals in Nigeria: A Case for Self-Regulation?

AbstractThe activities of oil multinational corporations (MNCs) in Nigeria, especially in the oil and gas sector, have come under focus in recent years. The BP oil spill in the Gulf of Mexico in the USA highlighted the negative or unintended consequences of the activities of MNCs. Also, oil MNCs in Nigeria have been at the centre of scandals about poor labour standards, environmental degradation and human rights violations amongst others. Furthermore, the extant state-oriented or command and control regulatory regime has been ineffective. Thus, self-regulation by oil MNCs has risen to help counter these negative consequences. This article contends that the self-regulatory regime is ineffective and advocates for reforms to remedy it.

A modest proposal: Right-sizing exchange immunity

The US securities industry is governed by three regimes: federal disclosure rules, state laws and self-regulatory organisations. The self-regulatory scheme is the result of an 80-year-old compromise conceived during the height of the Great Depression. While today’s industry is unrecognisable from that time, the self-regulatory rules remain nearly unchanged. Specifically, the US exchanges — sanctioned as self-regulatory organisations with immunity from private damages suits — evolved from mutually-owned utilities to for-profit enterprises. At the same time, alternative trading systems now execute significant trading volumes outside the traditional exchange venues. Despite these and other developments, the self-regulatory regime remains almost entirely unchanged from its inception. This paper discusses important facets of the US self-regulation debate.

The non-existence of private self-regulation in the transnational sphere and its implications for the responsibility to procure legitimacy: The case of thelex sportiva

AbstractThis article is a critical examination of the claim that the emergence of private self-regulatory regimes in the transnational sphere signals a new trend of self-constitutionalization outside the limits of nation-state based or intergovernmental control. It deals with the question to what extent the diffusion of public authority in the sphere beyond the state affects the responsibility of the state(s) to procure the legitimacy of such private self-regulation. First, a conceptual argument is developed which identifies private self-regulatory regimes as rule systems nested in a specific constitutional order of the international society, here described as ‘neo-Westphalian’ (Section I). Second, implications for the responsibility to procure the legitimacy of collectively binding regulatory functions performed by private actors in the sphere beyond the state are considered (Section II). Often cited as a model example of autonomous societal self-regulation, thelex sportivarenders particularly strong plausibility for the claimed non-existence of purely private self-regulation. The regulation of performance-enhancing substances can serve to demonstrate the complex interactions between multiple public and private sites of constitutional authority (Section III). In conclusion (Section IV), I argue that, although the ultimate responsibility for providing legitimacy continues to lie with the state/world of states, the political order of the international society as construed in neo-Westphalian terms provides a dispersed and fragmented constitutional-style legal framework with few reliable guarantees that states are capable or willing to enact their background role. Therefore, a substantial part of the burden of – initial – legitimation must be carried by those directly involved in private self-regulation by constituting and exercising public authority.

Successes and Failures of Self-Regulatory Regimes Governing Museum Holdings of Nazi-Looted Art and Looted Antiquities

American museums have long recognized that their collections sometimes include two categories of artwork whose prior owners parted with the pieces unwillingly: Nazi-looted art and illicitly exported archaeological objects. The relevant industry associations—the American Alliance of Museums and the Association of Art Museum Directors—have promulgated self-regulatory regimes that purport to ensure that museums return any objects to their rightful owners when they do not hold good title. However, the success of these regimes has varied widely based on whether the artwork is an archaeological antiquity or a Nazi-looted piece. This Article identifies the ways in which the regimes and the contexts in which they were created diverge. It argues that museums dealing with looted antiquities require outside scrutiny and internal convergence of opinion, elements present in the effective self-regulatory regime surrounding Nazi-looted art. These factors would assure the compliance that is lacking in antiquities regimes, which have little outside scrutiny and are fraught with extreme differences in opinion within the museum community as to how to solve the problem, or whether there is a problem at all.

The EU Response to the Trade in Conflict Minerals from Central Africa

The trade in conflict minerals has led to the eruption and conservation of conflicts and gross violations of human rights, in particular in the central African region. In response, various public and private entities have taken measures to counter this development. The purpose of this essay is to analyze how the European Union, in light of its promotion of corporate social responsibility, should regulate the behaviour of multinational companies dealing with minerals from conflict-ridden areas. In light of recent initiatives taken by the UN, the United States and the mineral-extraction industry, it is examined whether the EU should adopt public regulation or whether it should continue its promotion of private self-regulatory regimes. The authors argue that the EU should promote regulation at the level that provides the strongest incentive for companies to comply with their duties. This article shows that both private and public regulation have their limitations in regulating the trade in conflict minerals and that the EU should thus adopt a mix of both. In doing so, the development of transparency norms can be delegated to companies, stakeholders and other affected parties, while the EU could provide for an effective accountability mechanism to enforce these norms.

The Metacapitalism Spectacle

Purpose: The spectacular Internet Bubble that burst in 2000 makes the latest 2008 global financial crisis seem persuasive in its reflection of the same flawed logic, which prompted all other crises and bubbles in-between. The flawed logic of a globalised electronic free-market economy is built on the premise that disruptive Internet innovation would enable seamless electronic transformation of corporations, and their interconnectedness and collaboration across the ‘electronic’ demand and supply chains (outsourcing non-core and at times core activities), which would free up corporate capital resources to decapitalise non-core assets. However, when we look more closely at the facts of the past twenty or so years, the theoretical surface no longer seems smooth with the shift from a virtuous circle of industrialised value creation and job creation, where businesses were prospering, employment expanding and communities thriving to a post-industrial globalised world. This new economic world order is where corporations moved to lower-cost regions and production capability became distributed more widely, and as we get closer to the evidence of leaner but meaner working conditions, more responsibilities and fewer staff, longer working hours, stagnant salaries, smirking bean counters promising more cuts, and powerless nation-states in the face of an increasingly weakened link between business growth and local job growth, cracks begin to appear. This thesis examines such resource allocation tensions, which are often articulated in socio-economic, political, technological or ethical rationales, with accounting arbitrarily ‘calibrating’ their parameters. These parameters may include age, time limits, useful lives, budgetary and efficiency constraints. The purpose of which is to privilege and legitimise parochial power structures over deep-seated inequities of resource allocation. Design/Methodology/Approach: Accounting is a complex communicative symbolic exchange of interests that obfuscates the potency of our role, in the pacification and de-politicisation of resource allocation tensions. The spectacle of international and regional wrangling over economic governments’ bailouts and rescue packages due to the 2008 Global Financial Crisis and the continuing European Debt Crisis, only overwhelms its observers and disconnects them from the powers that control their lives. The disenfranchised populace are out in force voicing their discontent, but nevertheless are completely oblivious to who should be blamed for their miserable condition. Some blame politicians and foreign governments, while others blame corrupt institutional structures and financial institutions, and so forth. All the while, the spectacle and its euphoria go on, away from the perpetrators of exploitation and injustice. The contemporary nature of MetaCapitalism that has its intellectual underpinnings in the contentious neoliberal ideology, lends itself to an exploratory approach in its study so as to clarify and define its problematic nature. This thesis develops an exploratory evaluating methodology that provides an analytical critique of the subjective-objective complexities of the MetaCapitalism model assumptions, so as to provide evidence of the model’s success or failure. Findings: Presented in this way, the story sounds historically compelling, logically consistent and empirically convincing – but only if I can establish one basic fact: the global process of ‘financialisation’ has been led by the United States. Its liberalisation and deregulation of financial markets in favour of self-regulatory regimes, have failed to avert the recurrence and intensity of financial crises. This is the starting point. So let’s look at the evidence. MetaCapitalism change strategy has exacerbated the intensity and frequency of structural resource allocation changes within the largest global corporations and this has amplified their market volatility. The Big 4 audit firms, who monopolise 85 per cent of the global audit market, have failed their agency role within the financial markets. The findings from the analysis of nearly 70,000 corporations reveal that they have failed to recognise the complexity of the new technological structural changes to resource allocation, even after analysing their conventional analytical methods, which should have signalled the problems. How could they have missed those signals when giving unqualified opinions of the audited financial reports of corporations, which have subsequently collapsed or had to be bailed out within less than a few months from the issuance of the audit report? Originality/Value: The scale of the study, breadth of the analysis, and novel critique of the new technological business changes and their neoliberal ideological underpinnings, are some of the contributions of this research. However, one of the most important contributions of this research is the development of a corporate performance evaluation method, which exposes the culpability of the Big 4 audit firms in their failure to fulfil their entrusted agency role in the financial markets.

Successes and Failures of Self-Regulatory Regimes Governing Museum Holdings of Nazi-Looted Art and Looted Antiquities

American museums have long recognized that their collections sometimes include two categories of artwork whose prior owners parted with the pieces unwillingly: Nazi-looted art and illicitly exported archaeological objects. The relevant industry associations—the American Alliance of Museums and the Association of Art Museum Directors—have promulgated self-regulatory regimes that purport to ensure that museums return any objects to their rightful owners when they do not hold good title. However, the success of these regimes has varied widely based on whether the artwork is an archaeological antiquity or a Nazilooted piece. This Article identifies the ways in which the regimes and the contexts in which they were created diverge. It argues that museums dealing with looted antiquities require outside scrutiny and internal convergence of opinion, elements present in the effective self-regulatory regime surrounding Nazi-looted art. These factors would assure the compliance that is lacking in antiquities regimes, which have little outside scrutiny and are fraught with extreme differences in opinion within the museum community as to how to solve the problem, or whether there is a problem at all.

The impact of initiatives to limit the advertising of food and beverage products to children: a systematic review

In response to increasing evidence that advertising of foods and beverages affects children's food choices and food intake, several national governments and many of the world's larger food and beverage manufacturers have acted to restrict the marketing of their products to children or to advertise only 'better for you' products or 'healthier dietary choices' to children. Independent assessment of the impact of these pledges has been difficult due to the different criteria being used in regulatory and self-regulatory regimes. In this paper, we undertook a systematic review to examine the data available on levels of exposure of children to the advertising of less healthy foods since the introduction of the statutory and voluntary codes. The results indicate a sharp division in the evidence, with scientific, peer-reviewed papers showing that high levels of such advertising of less healthy foods continue to be found in several different countries worldwide. In contrast, the evidence provided in industry-sponsored reports indicates a remarkably high adherence to voluntary codes. We conclude that adherence to voluntary codes may not sufficiently reduce the advertising of foods which undermine healthy diets, or reduce children's exposure to this advertising.

The responsibilities of free speech regulators: an analysis of the Internet Watch Foundation

The Internet Watch Foundation (IWF) is a UK-based self-regulatory organization that seeks to reduce the availability of child sexual abuse and criminally obscene content on the Internet. One of the methods used by this organization is the creation of a blacklist of content, which the members disable access to through the use of filtering technologies. The work of the IWF raises fundamental questions about how to regulate free speech in the digital age; it carries out work of critical importance, but if unchecked its operations can have a significant impact on the right to freedom of expression. This article examines whether the IWF’s regulatory structure is sufficient to protect and respect freedom of expression online. The analysis is both internal to the organization by looking at its governance documents, and external to the IWF by examining the applicability of human rights laws. Through this examination, wider issues in Internet regulation and human right are analysed, in particular the increasing impact of businesses on human rights such as free speech, the sufficiency of self-regulation to address human rights issues, and the limits in extending direct application of human rights laws to private organizations. This article concludes by identifying the risks with self-regulatory regimes when human rights are at stake and by framing the principles needed for accountability of such bodies as the IWF for freedom of expression.

Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations

Work law confronts a vexing enforcement gap. After decades of employer-side pushback and doctrinal erosion, the traditional mechanisms through which labor and employment protections have been enforced — command-and-control regulatory oversight and private litigation — now fall short in large sectors of the economy. And unions, once a powerful check against employer overstepping, are absent in the vast majority of workplaces and weaker where they still exist. The result is widespread noncompliance, particularly at the low end of the labor market.As the traditional approaches to enforcement have waned, self-regulatory alternatives to fostering legal compliance have gained traction in both theory and practice. Yet, despite their rhetorical appeal and likely staying power, they, too, have failed.This Article traces the decline of the traditional mechanisms for enforcing workplace rights and diagnoses the failure of existing self-regulatory regimes. It then proposes a different strategy for enhancing compliance within firms: imposing “professional-like” supervisory duties on high-ranking corporate officers to ensure firm compliance with work-law standards. Existing self-regulatory models fail precisely because receding oversight and enforcement risks render their inducements too weak to ensure genuine self-regulation. But the principal decision-makers within these firms would approach compliance with far greater vigor if they were bound — personally — to do so. In an era in which the shortcomings in external enforcement are unlikely to be eliminated, supplementing firm-level accountability with a carefully calibrated regime that targets firm decision-makers themselves offers a potentially effective and cost-efficient way to promote greater adherence to work-law mandates.

Sovereign Wealth Funds as a Public-Private Challenge for Institutional Governance

During the G20-meeting of April 2009 it was agreed that all systemically important financial institutions, markets, and instruments should be subject to an appropriate degree of regulation and oversight. SWFs are important financial market participants. Economic studies assert that SWFs will keep growing disproportionably for some time and attempt to diversify their holdings through cross-border investments.They have plaid a stabilizing role, helping distressed banks during the financial crisis. As a source of governmental capital they raise concerns and calls for protectionism against their influence are widespread. The challenge is to develop an institutional framework and a governance regime that help maintain an open and stable investment climate. The IWG-SWF has established the International Forum of SWFs, a voluntary initiative, which aims to support the G20 objectives to promote global investment and reject protectionism, as well as the implementation of the “Santiago Principles” it defined in October 2008. The paper focuses on an analysis of the governance structure of the regulatory regime, its potential as a self-regulatory regime, its ability to alleviate concerns of recipient countries, and to develop best practices. The paper also discusses existing barriers in recipient countries. It is argued that it is necessary to establish ongoing dialogue between donor and recipient countries.