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Quis custodiet ipsos custodies in the Internet: self-regulation as a threat and a promise

Cave, Jonathan and Marsden, Christopher (2008): Quis custodiet ipsos custodies in the Internet: self-regulation as a threat and a promise.

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ICT domains have always been subject to technical, economic and/or societal regulation. The traditional basis was a 'governance gap' between economically-motivated activities and external consequences for other firms, end-users, public services, etc. Recent changes in European market and societal contexts and policy initiatives have triggered a reconsideration of this basis. Four developments are particularly challenging: enterprise convergence and divergence that reshape market and sector boundaries; evolution of 'converged' regulators; new regulatory concerns (IPR enforcement, RFID, net neutrality); and changes in the policy context. These combine to lay the foundation for cross-cutting reviews and rebalancing of regulatory roles and responsibilities with profound structural and dynamic implications. This has been largely confined to formal regulation while much governance is provided by a spectrum of self- and co-regulatory organisations (hereafter referred to as XROs). This paper analyses XRO roles, functions and impacts and their implications for regulatory postures more supportive of overarching policy objectives, more transparent and accountable, more flexible in response to technological and other changes, less burdensome to those regulated and less likely to distort market evolution. It draws on a review of the self-regulation literature in a wide range of contexts, including financial services and professional self-regulation, 21 extended case studies of Internet XROs, an analytic treatment of the determinants and impacts of XRO formation, agenda-setting, rules, monitoring, enforcement and compliance; and a policy analysis of the scope for regulatory engagement with XROs and methods for option development and ex ante evaluation. Particular issues concern: the degree to which XROs form around specific issues, market segments, personalities or action modes (e.g. standardisation); whether different types of statutory or XRO governance are likely to adopt more stringent or more cost-effective rules; whether different arrangements are more vulnerable to capture or corruption; and whether compliance will be higher under specific types of arrangements. Public policy and the peer-reviewed literature converge on the recognition that there is always a price to be paid for regulation in the form of distortion, cost, institutionalisation, agenda creep and so on. This must be offset against justifying benefits, which may mean extending or shrinking regulation in various areas, rebalancing rule-making and rule-enforcing, delegating or clawing back responsibility, etc. It is necessary to reassess how, but whether and even why regulation should be done. Generally, this calls for some evolved form of, or alternative to, regulation. The paper presents six specific findings and associated recommendations for policy formulation.

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