Self Regulation: risk of privatisation of law enforcement

EuroISPA contributed to the Commission’s consultation on a “Code for Effective Open Voluntarism: Good design principles for self- and co-regulation and other multi-stakeholder actions”.

October 2012. An EU-level, principles-based code of conduct, if well-designed, balanced and respectful of all interests at stake could be a useful complement or sometimes even substitute to legislation. However, self-regulation should not be used to delegate to the private sector tasks belonging to the law enforcement. This would amount to privatize law enforcement and risk having negative consequences for the rule of law.

The European Internet industry, which EuroISPA represents, is the most remarkable growing business sector in Europe, if compared to other industries. The quick technological evolution poses policy challenges that most of times end up with pressure on EU and national decision-makers to provide a response. Sometime, the decision is taken to legislate while others a soft-law approach is preferred. EuroISPA clearly favors the latter form of intervention over the former, but we acknowledge that self-regulation, in order to be effective, needs to draw a clear line between the different roles and competences of the public and private sectors. Frequently, self-regulation is used to delegate to the private sector powers belonging to the law enforcement. The private sector is not in the position to decide a case on the merits. This eventually would amount to privatize law enforcement and risk having negative consequences for the rule of law.

If this shift of competences through self-regulation is suitable or not from a political, social and legal point of view, is not the focus of our contribution. What is certain is that the costs of compliance would divert business strategies from innovation and job creation to the detriment of the Digital Single Market.

EuroISPA has been advocating since long a change of this trend in various dialogues and stakeholders’ platforms convened by the Commission in different areas. The fact that the majority of dialogues  we invested time and resources in ended up in failures, is evidence of the fact that it is time to reconsider the entire paradigm and start learning from past mistakes. We consider that the approach undertaken with this consultation could be a constructive one but at specific conditions.