Private Power Online: how does EU law fare? – Dr Angela Daly

My new book Private Power, Online Information Flows and EU Law: Mind the Gap has recently been published by Hart, and will be launched on Tuesday 31 January with Chris Marsden (Sussex) and Orla Lynskey (LSE). More info about the launch and RSVP via this link.

The book is based on my doctoral research at the European University Institute’s Department of Law, but it’s actually my second book, following Socio-Legal Aspects of the 3D Printing Revolution published last year with Palgrave. Both books take a socio-legal, law-in-context approach to questions arising from the regulation of new technologies.

In Private Power I examine the extent to which European Union (EU) law and regulation addresses the problems that large private companies providing Internet infrastructure, products and services pose for Internet users’ economic interests and fundamental rights – a combined standard I define as ‘user autonomy’. In doing this, I consider four relevant areas of EU law: sector-specific regulation (where it exists), competition law, data protection and fundamental rights. I look at how these laws apply in four case studies which each form a gatekeeper or ‘choke-point’ over free information flows: Internet provision and the net neutrality debate; search engines and the ongoing European Commission competition investigation into Google; mobile devices and app stores; and cloud computing. Each of these case studies forms its own chapter, preceded by the Introduction and a chapter setting out the theoretical framework.

The main arguments of the book are that ‘user autonomy’ is a more appropriate goal for the legal framework (especially as regards ‘economic’ areas of law such as competition) than ‘consumer welfare’ and that when judged against user autonomy, current EU law and regulation leave gaps when applied to concentrations of private power in the online ecosystem. These gaps exist due to extra-systemic reasons, including neoliberal-influenced trends which have guided the regulation of economic power in jurisdictions including the EU over the last 30 years, trends which also have entailed a time-lag between problems in these areas being identified and regulatory activity actually being proposed (with net neutrality being an example of this). In solution, technical solutions are offered as quick fixes in each case study as bridging these gaps. These technical solutions are usually technical measures using peer-to-peer design which promote the normative value of user autonomy.

The book makes a provocative contribution to contemporary debates on the regulation of technology, the governance of very large corporations in the Internet ecosystem, the relationship between competition law and data protection (and other fundamental rights) since the coming into force of the EU’s Charter of Fundamental Rights, and the design and implementation of both the General Data Protection Regulation and the EU’s net neutrality provisions. The book also provides a critique of the neoliberal influence over law and regulation, particularly on ‘economic’ topics, in Western countries in recent decades by examining how this has played out in the Internet sphere.

While the book identifies many problems, it does not pose legal solutions. Legal solutions, however, are necessary in order to address the problems identified. We need legal reform which ensures that individuals’ economic interests and fundamental rights are protected and upheld in a coherent fashion vis-à-vis large companies. However, this will likely be a longer term project. Alternatively, consumer law may emerge as having a more prominent role in the Internet ecosystem when addressing power imbalances than it has done so far. The problems arising from private economic power online have competition, data protection and consumer aspects, so at very least the regulators and enforcement bodies in these domains should be working more closely together in order for a coherent approach to these issues to emerge.

Dr Angela Daly, Vice Chancellor’s Research Fellow – Queensland University of Technology Faculty of Law (Australia), Research associate – Tilburg Institute for Law, Technology and Society (Netherlands)