Governance

Author: Paddy Leerssen

The concept of governance offers a ‘decentered’ perspective on regulation, which does not emanate solely from the state but instead emerges from (complex, interactive) constellations of public and private stakeholders. In the words of Julia Black, “‘[g]overnance’ is a much-debated term, but most definitions revolve around the observation that both public and private actors are involved in activities of steering or guiding ‘the governed’ in ways that may or may not be interrelated” (2008)¹. Narrower conceptions of ‘governance’ do exist, in which it remains the sole purview of the state, as do broad conceptions of ‘regulation’ which also recognize the role of private actors (Gorwa, 2019)².Despite these various shadings and permutations, several authors tend to see ‘governance’ as broadly synonymous with regulation, though connoting an emphasis on the role of private actors in processes of rulemaking and enforcement. However, the equivalence between governance and regulation seems to be visible only in English-language literature. 

As noted by Belli (2016; 2019)^{3 4} the use of the term governance in reference to the Internet frames the mechanisms that stimulate the interaction and association of different stakeholders in a political space where divergent ideologies and economic interests are confronted. In this context, governance can be considered as the set of processes and institutions that organize the comparison of heterogeneous ideas and perspectives and, ideally, promote the collaborative proposal of new regulatory instruments aimed at solving specific problems. On the contrary, regulation can be considered as the collection of the different regulatory instruments that are the product of governance. In the view of Frison-Roche (2003)⁵, the objective of regulation is to foster equilibrium and ensure the proper functioning of complex systems, characterized by the presence of a plurality of actors, animated by divergent purposes and interests.  In the latter case may be contractual, such as the terms and conditions (Venturini, Belli, 2016)⁶ defining the rules for the use of web platforms (Belli, Zingales, 2017)⁷, mobile applications and Internet access networks, or technical, such as the algorithms, standards, and protocols defining the software and hardware architectures that determine what users can and cannot do in the digital environment (Reidenberg, 1998; Lessig, 2006; Belli, 2016)^{8 9 10}.

In the context of internet governance, influential accounts including those of Van Eeten & Mueller (2013)¹¹ and Hoffman, Katzenbach, and Gollatz (2016)¹² have argued that governance can and should be distinguished from ‘regulation’. In the internet context, they argue, governance often consists of “rules and institutions that emerge as side effects of actors pursuing non-regulatory goals”, often the result of “complex coordination processes” (Hoffman, Katzenbach, Gollatz (2016)¹³. This broader, non-regulatory conception of governance encompasses all forms of coordination and interaction which lead to the creation of rules and principles that guide conduct, such as, for instance, standard-setting by Internet Service Providers or online platforms. However, to prevent ‘governance’ from expanding to cover all forms of online interaction and coordination, they introduce a requirement of reflexivity: an act of coordination becomes an act of governance “when ordinary interactions break down or become problematic (…) and we see ourselves forced to discuss and negotiate the underlying norms, expectations, and assumptions that guide our actions”.

Whether it is understood as reflexive coordination, or simply as a form of regulation, ‘governance’ has proven to be a highly relevant and widely used concept in the context of platforms, these being private entities that play an influential role in governing online ecosystems (e.g., Van Dijck, Poel en De Waal, 2018)¹⁴. See platform governance.

References

1. Black, J. (2008). Constructing and contesting legitimacy and accountability in polycentric regulatory regimes. Regulation & governance, 2(2), 137-164. Available at: https://onlinelibrary.wiley.com/doi/full/10.1111/j.1748-5991.2008.00034.x.
2. Gorwa, R. (2019). What is platform governance? Information, Communication & Society, 22(6), 854-871. Available at:https://gorwa.co.uk/files/platformgovernance.pdf.
3. Belli, Luca. (2016). De la gouvernance à la regulation de l’Internet. Paris: Berger-Levrault.
4. Belli, Luca. (2019). Internet Governance and Regulation: A Critical Presentation. In: Belli, Luca, Cavalli, Olga. Internet Governance and Regulations in Latin America. FGV Direito Rio. Available at: https://www.gobernanzainternet.org/book/book_en.pdf.
5. Frison-Roche, Marie-Anne « Le contrôle des organes de régulation (l’exemple du NYSE) », Recueil Dalloz, N° 41, 2003, p. 2810
6. Venturini, J., Belli, L. 2016. Terms of service and human rights: an analysis of online platform contracts. Revan, in collaboration with the Council of Europe and FGV Direito Rio. Available at: https://bibliotecadigital.fgv.br/dspace/handle/10438/19402.
7. Belli, L., Zingales, N. (2017). Platform regulations: how platforms are regulated and how they regulate us. Leeds. Available at: https://bibliotecadigital.fgv.br/dspace/handle/10438/19402.
8. Reidenberg, J. R. (1997). Lex informatica: The formulation of information policy rules through technology. Tex. L. Rev., 76, 553. Available at: https://gorwa.co.uk/files/platformgovernance.pdf.
9. Lessig, Lawrence. (2006). Code and Other Laws of Cyberspace. Version 2.0. Aufl. New York.
10. Belli, Luca. (2016). De la gouvernance à la regulation de l’Internet. Paris: Berger-Levrault.
11. Van Eeten, Michel and Milton Mueller (2013). Where is the governance in Internet governance?.
12. Hofmann, J., Katzenbach, C., Gollatz, K. (2017). Between coordination and regulation: Finding the governance in Internet governance. New Media & Society, 19(9), 1406-1423.
13. Ibid
14. Van Dijck, J., Poell, T., De Waal, M. (2018). The platform society: Public values in a connective world. Oxford University Press.