The series of interviews with media law experts continues with Professor Chris Marsden's thoughts on a comprehensive prosumer (user-producer) legal framework.

Regulatory framework and jurisdiction

Dr Chris Marsden is Professor of Internet Law at the University of Sussex. He has been a research fellow at Cambridge, Oxford, Warwick, Harvard, Melbourne, and Keio (Japan) and was previously professor at Essex. He advises governments, human rights organisations and others and frequently is quoted in the media. He is the author of four monographs on Internet and new media law, of interdisciplinary Internet policy books, professional articles, keynote addresses, and other scholarly contributions.

Can you elaborate on the concept of the “prosumer”? What are the implications for the regulatory framework ?

“Prosumers” (a term coined by Toffler, 1980) are active users who are sharing and producing content, rather than passively consuming it, notably ‘hacking’ content using techniques that Apple famously described in a 2006 iPod advert as “rip, mix, burn”. Any Internet user who has posted content, from Facebook to Twitter to blog posts to podcasts, has become a prosumer – though there are very broad categories, ranging from the occasional tweeter to the fully developed hacker. Over a billion people now use YouTube to watch and upload videos, Facebook and WhatsApp to share news, gossip and photos, and Twitter and other blogs to say just about anything. We are all becoming ‘prosumers’ sharing intimate details of our personal lives. But this ‘prosumer environment’ is currently either grossly unregulated, leaving users' data and content at the mercy of the multinationals who host it and sometimes claim to own it, or subject to knee-jerk over-regulation, such as the UK Prime Minister’s on/off plans to subject all UK Internet users to default filters.

Regulatory responses are finally emerging, driven by both data protection and competition concerns, yet the over-arching need to ensure greater neutrality of intermediaries has largely been limited to last mile monopolists and mobile oligopolists: the legacy telecommunications companies who provide Internet access. What is needed is a comprehensive prosumer law solution that draws on fundamental human rights to privacy and free expression, competition, and technology regulation to ensure a fair and neutral deal for prosumers. A comprehensive solution can best be deployed by the European Commission consultation on online intermediaries launched in September 2015.

Why do platform operators need to be regulated?

Users who are now also producers, and hence termed prosumers, rely on platforms to view, store and process their content and personal data, fairly and securely. A decade into the era described in 2005 as "Web2.0" (after the Ajax rich media software suite), intermediaries have become extraordinarily powerful gatekeepers for the broadband social media advertising-dominated Internet that is now a ubiquitous computer and mobile phone presence in the lifestyles of the developed world. These include dominant operators in search engines (Google), operating systems (Microsoft, Android), media (Apple iTunes, YouTube), social networking (Facebook), photo sharing (Instagram and Snapchat), chat (Skype and WhatsApp), commerce (eBay and Amazon). These companies dominate their respective sectors. Yet the need is for rules that ensure neutrality of storage, search and liability for third party content, which suggests minimum rules for all platforms, complementing existing rules of the Audiovisual Media Services and E-commerce Directives.

Governments have moved from prohibition-based, enforcement-oriented regulation which left them inflexible to deal with more subtle problems associated with online platforms, to smarter regulation that works technically, with some degree of outcome legitimacy in terms of goals. These might, for instance, support the creation of public goods such as interoperability and access to platforms, and disruptive innovation in markets. A smart solution in terms of code and regulation would provide effectiveness in enforcement (whether by law or code), technical efficiency (in an engineering sense) and legitimacy, transparency, and accountability (to allay rights-based concerns). Unsurprisingly, the outcomes are likely to be trade-offs among these goals.

I seek to develop a more unified framework for research into Internet regulation, designed to use the best of both software and legal code to create principles for regulatory intervention based on due process, effectiveness and efficiency, and respect for human rights. I describe this type of regulation as prosumer law. Law, computer science and economics interdisciplinary analysis need to be deployed in order to explore a comprehensive policy solution to intermediary liability. The interdisciplinary mixed method used contains primary and secondary literature analysis and case analysis (both regulatory and judicial, where relevant), qualitative empirical interviews with leading stakeholders and both economic and engineering quantitative data analysis.

Are there problems caused by ‘law shopping’/’jurisdiction shopping’ and as a consequence ineffective oversight?

US companies constantly complain that the proposed new European Regulation on Data Protection will raise costs of doing business via platforms. But separate the rhetoric from reality: it is the US federal and state authorities - and litigants in court - which have far more vigorously pursued Facebook, Google and others for their failures to guarantee users’ privacy. In November 2012, Google settled for $22.5 million a case brought by the FTC in the case of tracking cookies for Safari browser users,[1] on top of a 2011 $8.5 million settlement for privacy breaches involving Google Buzz. In January 2013, Facebook settled a class action with a $20 million payment into a compensation fund that – as with the Google Buzz settlement – culminated in privacy advocacy and education groups receiving a substantial part of the settlement.[2] In 2012, both companies agreed to settle privacy complaints by agreeing to FTC privacy audit of their products for a twenty-year period.[3] Sector-specific regulation of social networking already exists de facto in the United States, while European member states wring their hands on the sidelines as ‘flag of convenience’ national regulators in Luxembourg and Ireland provide derisory oversight.

Prosumerism should be a declared policy of the European Commission alongside the European interoperability framework (EIF). The Commission on 17 December 2012 launched its Code of European Union Online Rights for European citizens using the Internet.[4] European e-commerce and audiovisual law is a marked departure from freedom of contract in European law. It is therefore not difficult to extend the EIF and the legal protection for prosumers in this direction in law, though implementation requires all member states to commit to such a step in practice as well as theory.[5] Prosumer law must do more than permit data deletion because that only covers users’ tracks. It needs the ability for exiting prosumers to cover their traces, transfer their content and metadata, and suggests interoperability to permit exit to more prosumer-friendly products than Google and Facebook, should prosumers wish to switch. It requires a combination of interconnection and interoperability more than transparency and the theoretical possibility to switch. Only then will information markets become more competitive, and prosumers have the luxury of real choice between very different standards offered by their hosts.