Co-regulation

Rolf H. Weber

Self-regulation, as developed by the concerned (market) participants, can be strengthened by involving governmental agencies in the rule-developing and rule-implementing processes. Depending on the degree of involvement, the respective forms of co-operative rulemaking are called (i) co-regulation, (ii) regulated self-regulation, (iii) directed self-regulation or (iv) audited self-regulation (Weber, 2014)¹. The most common model balancing the interests of international organizations, States, businesses, and civil society is co-regulation, as described hereinafter. Such kind of multistakeholder approach can serve legitimate State purposes as well as efforts of the private sector.

‘Co-regulation’ as a model – coined by Grainger (1999)² and Hoffmann-Riem (2000)³ in relation to the media markets – means that the government provides for a general framework which is then substantiated by the private sector, i.e., the State legislator sets the legal yardsticks and leaves the codification of the given principles by way of specific rules to private bodies. Thereby, regulation can remain flexible and innovation-friendly. Additionally, the government remains involved in private rule-making activities, at least in a monitoring function supervising the progress and the effectiveness of the initiatives in meeting the perceived objectives (Senn, 2011⁴; Marsden; Meyer; Brown, 2020⁵).

Co-regulation is a regulatory model leaving the actual ‘regulator’ independent from the government as long as the rules remain within the legislative framework. Whether, for example, Codes of Conduct developed by the private sector need to get approval from a public authority to become effective depends on the applicable legal provisions (being partly the case in financial markets). Such a requirement appears to be justified if private rule-making risks to implement not sufficiently adequate normative standards. Governments can assess the representativeness of self-regulatory standards and judge the appropriateness of best practices; interventions appear justified if a higher level of protection measures is desirable (Marsden, Meyer, Brown, 2020)⁶ .

Many examples for co-regulatory mechanisms exist, for example, in the media markets and in the Internet regulatory ecosystem (i.e., Nominet, EURID). Social media platforms are often exposed to court proceedings (e.g., Delfi, MTE v. Hungary)⁷; the implementation of standards and best practices can help to limit the respective risks. In addition, co-regulation can have a positive impact on the behavior of the concerned actors. Joint efforts of various stakeholders also allow the government to assess the standards’ representativeness and to judge the best practices’ appropriateness.

References

1. Weber, R. H. (2015). Realizing a New Global Cyberspace Framework. Berlin, Heidelberg.
2. Grainger, G. S. (1999). Broadcasting, Co-Regulation and the Public Good. Conseil supérieur de l’audiovisual.
3. Hoffmann-Riem W. (2000). Regulierung der dualen Rundfunkordnung: Grundfragen. Nomos-Verlag-Ges, Baden Baden.
4. Senn, M. (2010). Non-state Regulatory Regimes: Understanding institutional transformation. Springer Science & Business Media.
5. Marsden, C., Meyer, T., Brown, I. (2020). Platform Values and democratic elections: How can the law regulate digital disinformation?. Computer Law & Security Review, 36.
6. Marsden, C., Meyer, T., Brown, I. (2020). Platform Values and democratic elections: How can the law regulate digital disinformation?. Computer Law & Security Review, 36.
7. Magyar Tartalomszolgáltatók Egyesülete (MTE) and Index.hu zrt v. Hungary (ECHR 2016).