Dr Elena Abrusci, Brunel University London—written evidence (DRG0009)

House of Lords Communications and Digital Committee inquiry into Digital Regulation

This written submission has been prepared by Dr Elena Abrusci, Lecturer in Law at Brunel University London. My research and expertise focus on digital regulation and governance and the link between new and emerging technologies and human rights. Prior to the appointment at Brunel, I served as a Policy Advisory for DCMS in the digital regulation team. All views presented in this submission are my own. This submission addresses questions 1, 3 and 5.

The need for coordination on digital regulation and the role of the Digital Regulation Cooperation Forum

1. Digital technologies are pervading our society and becoming everyday more important in any aspect of everyone’s life. As the Covid-19 pandemic has shown, digital technologies have the capability of enabling services and rights that were traditionally only confined to the offline space. [1] However, they also have the potential of causing significant harm in a more disruptive way than anything we are used to, with a disproportionate impact on vulnerable groups.[2]

2. From competition to data privacy, from content moderation to consumer protection, digital technologies bring up issues that do not solely fall under a single regulator’s remit. The extremely rapid ways in which these technologies are developed and the wide range of contexts and situations where they are applied show that the traditional remits of regulators are not adequate to capture and regulate this complexity. Regulators need to coordinate their activities to ensure a coherent regulatory landscape for the benefit of businesses and consumers.

3. The Digital Regulation Cooperation Forum is a great initial step in this direction, overcoming the limits of the UKRN. Its establishment and coordinated plan of work for 2021-2022[3] shows commitment from the ICO, CMA, FCA and Ofcom to actively work together to address the most challenging cross-cutting digital regulatory issues. Yet, it is still premature to evaluate its actions and effectiveness and an assessment could only be made at a later stage. However, there are a few elements of concerns that could hinder its functioning and ability to perform, which should be closely monitored.

The regulators’ remits and possible power imbalances

4. The four regulators are legally bound by their remits and their activity could be significantly limited by them. This relates to both their ability to extend their work to new adjacent areas and filling possible gaps, as new and emerging technologies bring up novel issues, and to the possibility of sharing information with each other for the purpose of coordination. Moreover, coordination between regulators within the DRCF remains voluntary and this could be subject to change across time, preventing long-term commitments. Drawing inspiration from the financial sector,[4] a change in the statutory duties of the DRCF regulators, through a duty to cooperate or coordinate that could include all these three aspects, could be a viable solution as somehow suggested by the UK Digital Regulation Plan.[5]

5. As it is currently designed, the DRCF may suffer from a power imbalance between regulators. Without an independent chair or a procedure to manage trade-offs between contrasting interests, the DRCF could be limited in its actions. Fundamental regulators’ objectives, such as competition and data protection for instance, could sometimes be in contrast and there is no mechanism within the DRCF to manage such a trade-off. Moreover, this power imbalance may prevent other relevant regulators, such as the Gambling Commission or the Advertising Standards Authority, to join the DRCF in the future.

Horizon scanning function

6. The DRCF could be an excellent forum for discussing emerging regulatory needs on digital technologies performing a horizon scanning function that is crucial for making the United Kingdom a place where innovation thrives without compromising on protection against harms. However, there are two possible issues in relation to the horizon scanning function: the scope of this scanning exercise and the ability to inform policy.

7. When conducting a horizon scanning on digital regulation, the main stakeholders involved are often representatives from the technology industry, think tanks and digital policy organisations. However, considering the disproportionate impact that digital technologies have on vulnerable groups and minorities, it is paramount that the DRCF specifically include civil society organisations representing disadvantaged groups in its consultation process. This would allow to capture the often-hidden side of digital regulation, that of regulating digital for those who have very limited access to these technologies but suffer nevertheless their harm. More in general, a wide approach to stakeholder engagement beyond the traditional stakeholders is highly recommended.

8. In addition to this, there is a risk of the DRCF not being able to inform government policy due to the lack of dedicated mechanisms or procedures. This could lead to a body that performs a good extent of horizon scanning but does not dialogue enough with government and Parliament.

Assessing the DRCF against the proposed Digital Authority

9. The Digital Authority, as proposed by the Committee in its report ‘Regulating in a digital world’, is an excellent option for responding to the challenges of digital regulation. However, it adds an additional layer of complexity to the already confused and crowded space of regulators and could be perceived by regulators as excessively intrusive, to the extent that their cooperation with it may end up being limited.

10. However, with some amendments, the DRCF could become a good compromise between the proposal of a Digital Authority and the current status quo. The DRCF already has, as its functions and objectives, several of the features of the Digital Authority, such as the support to coordination of regulators’ activities, the pool of digital expertise and the engagement with stakeholders.

11. Yet, the DRCF would incredibly benefit from the appointment of an independent chair, possibly accountable to Parliament, to ensure a smooth operation of the Forum and accountability for its activities. This, together with a statutory duty to cooperate and a dedicated process for informing policy-making, could make the DRCF stronger and akin to the Digital Authority. Moreover, the DRCF should inherit from the Digital Authority’s proposal also its strong attention to human rights and children rights, putting it at the core of its activities.

Recommendations

12. In conclusion, digital regulators need strong coordination to be able to address the challenges posed by digital and the DRCF is certainly a welcomed initiative and a great first step. Moreover, it has the potential of being reconciled with the most important and useful features of the proposed Digital Authority. However, to this end, it needs the following amendments:

12.1.    A statutory change for the regulators, introducing a duty to coordinate or cooperate to enable a long-term commitment towards the DRCF, the possibility to fill regulatory gaps, to manage trade-offs and to legally and efficiently share information for joint activities;

12.2.    The appointment of an independent chair accountable to Parliament and the establishment of dedicated procedures for the DRCF to inform policy;

12.3.    A stronger attention to human rights, which should be placed at the core of the activity of the DRCF and reflected in the stakeholder engagement efforts by engaging with vulnerable, disadvantaged and underrepresented groups.

21 October 2021

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