From Professor Chris Marsden, Professor of Internet and
Media Law at the University of Sussex.
When I first made predictions for Laurence and SCL in 2009,
I had just started a blog on the very niche subject of net neutrality in
Europe. That has now had close to a million views – showing that extremely
elusive debates can reach even more elusive but mass audiences. Revisiting
allows some perspective – and humble pie – eight years on.
Back then, I said: ‘2009 will be the year of Obama’s reforms
– both privacy and telecoms legislation is expected. It will not entirely roll
back Bush’s FCC do-nothing attitude, but it may be more radical than many
expect.’ In fact Obama let his Federal Communications Commission do the job,
and they got bogged down in net neutrality court cases, as will Ajit Pai,
Trump’s new FCC chair. Note that holistic omnibus privacy law was never passed
during Obama’s term and is now firmly off the table. I wrote about both these
issues in books on net neutrality and privacy in 2010 and 2017 – and the
glacial pace of US telecoms reform continues! Prediction: Ajit Pai abolishes
net neutrality at the 14 December FCC meeting, then the courts stay his action
in 2018. This net neutrality issue will run forever.
I also said: ‘On the “home” front, European legislators will
pass the Electronic Communications package, and expect vigorous action on
social networks from the privacy and child protection perspectives.’ Well, the
package did pass as two Directives, followed in 2015 by the ‘Connected
Continent’ reforms which became Regulation 2120/2015 and associated e-privacy
reforms, some of which are ongoing. The vigorous action on social network
regulation has not happened, despite urging from national and European
politicians in view of terrorist content, sexual abuse, fake news and the other
vile elements of human society manifested on the Internet. Facebook was
regulated by the Irish Data Protection Commissioner from 2012 (in response to
the US Federal Trade Commission and German pressure), but its regulation
remains relatively light touch. European regulators continue to reply more on
corporate social (ir)responsibility than hard law. If I had to predict, I would
estimate 2019/20 would be the date of hard law requiring ‘Notice and Action’
within one hour of complaints about illegal content online. If that sounds
farfetched, it is already the law in Thailand in 2017. Yes, I predicted it in
my Internet Co-regulation’ and ‘Regulating Code’ books of 2011 and 2013.
My final point was ‘This may well converge with the wider
(co-)regulatory agenda for search engines and ISPs. Economic recession will
impact surprisingly little on these agendas.’ Here I again note the relatively
slow pace of legislative reform, with the glacial progress towards the General
Data Protection Regulation, finally in force in May 2018. The European
Commission record fine for Google is being appealed for 2018, but it will have
to accept some kind of co-regulation of its vertically integrated advertising
in time. When I stated ‘recession’ in 2009, little did I know we have only
groggily emerged in the last two years in Europe!
A final prediction, based on last year’s predictions by me:
Brexit will not really happen, at least not for IT companies. How can I be
sure? The Data Protection Bill 2018 will have to be precise in ensuring the UK
as a third country appears identical to the EU. The more controversial
intermediary liability cases recently were those of the European Court of Human
Rights in Luxembourg, which we will still follow even after hard Brexit, not
those of the Luxembourg court. We must follow European law slavishly even if we
no longer influence and shape it. Of course, as Orwell noted, it would be
better if the sane part of the British ‘family’ ran government instead of the
Brexiteers and I have not lost hope that the final offer will be so
unpalatable, not least to the Unionists in Northern Ireland, that the
government falls and we choose to stay in the EU. Crazier things have happened,
and still happen all night in the Lincoln Bedroom at the White House.
