The non-profit association SRIW (Selbstregulierung Informationswirtschaft e.V.) is calling for a regulatory framework fostering innovation in the digital economy. This requires dovetailing laws and alternative regulatory instruments into a coherent overall system. IConcretising ethical and social common grounds in measures for self- and co-regulation facilitates faster and more flexible reactions to new challenges. Incentives, validation processes, and legal efficacy should all be harnessed to strengthen the business community’s responsibility and cooperative forms of rule setting. SRIW is committed to a constructive dialogue with policy makers, supervisory authorities and consumer associations and is, among other things, a member of the EU Steering Committee “Community of Practice for Better Self and Co-Regulation”.
Due to the significant experience and expertise in developing credible co-regulatory mechanisms, especially in the cloud sector, SCOPE Europe was invited by the European Commission to co-chair the development of the Software-as-a-Service Code of Conduct.
In particular, SCOPE Europe contributes to the establishment of a common governance for all Codes of Conduct under SWIPO and shares best practices and insights on successful co-regulation. You can find out more here.
As part of its strategy for a digital single market, the EU Commission is planning to make Europe fit for the digital era, dismantle regulatory barriers and improve cross-border market access for consumers and companies in the EU. It sees the digital single market as having an additional economic potential of approximately 415 billion euros. In the process of achieving these ambitious goals, virtually the entire statutory framework for the digital economy is to be revised and reformed over the next two years. These reforms offer a unique chance to develop a harmonised and simplified regulatory framework fostering innovation, thus enhancing Europe’s competitiveness in global digital markets.
Proposals for digital policy in the 21st century
On the basis of the “Key Points of a Digital Regulatory Policy” study conducted by Prof. Dr. Gerald Spindler (University of Göttingen) and Prof. Dr. Christian Thorun (Quadriga University), SRIW is advocating a modern digital policy with the following core propositions:
- The forces shaping the information society include such key aspects as disruptive business models, rapid innovation, strongly divergent consumer expectations and the cross-border nature of many services.
- Generally speaking, these particular features require relatively abstract and technology-neutral regulation by the state legislator.
- Co-regulation as a supplementary instrument can be effective here in countering the resulting grey areas and legal uncertainties.
- Such measures can only be effective within a regulatory framework. This framework has to establish the minimum standards for developing codes of practice, the involvement of important (critical) stakeholders, monitoring, evaluation and complaint procedures as well as penalty mechanisms. Moreover, for the instrument of co-regulation to function effectively, structural obstacles have to be dismantled and incentives created for the business sector.
In many cases, this would facilitate the process of establishing how existing legal regulations ought to be applied to new technological and market developments without having to wait for many years for decisions from the highest courts or constantly calling for new laws. Under constitutional law, private standards may have legal force if they are developed and implemented under certain accepted minimum requirements. The EU Principles for Better Self- and Co-Regulation summarise the Commission’s view of such minimum requirements. In the context of the laws covering technical safety, the German Federal Constitutional Court has expressly noted that the legislator itself cannot formulate every requirement in cases where constant and highly flexible adaptation is needed to respond to complex issues.
SRIW’s proposal is not only based on the results of a trilogue on data protection laws focusing on Sections 38 and 38a BDSG (German Data Protection Act), but also includes the existing mechanisms to recognise technical standards and their legal effects as practised in the area of product safety law.
SRIW has presented and discussed a concrete draft of a standard clause in Brussels, where it met with a predominately positive reaction.
It is proposed to create a legal incentive, as in the case of product safety, by giving recognised codes of conduct a legal force.
Standard Clause to Strengthen Co-Regulation in the Digital Single Market
Against this background, SRIW has drafted a concrete proposal for a statutory standard clause. The idea is to flank the intended cut-back in legal regulations with an effective statutory framework for co-regulatory measures facilitating the state recognition of such measures and linking them to particular legal effects. Such a move would enhance the dovetailing of abstract legal rules and measures through delegated legislation with the latter concretising such rules in specific contexts, thus allowing a faster and more flexible reaction to current challenges and changes in the market. Rather than the objective here being self-restraint on the part of the legislator or an unnecessary formalisation of existing self-regulatory approaches, such a proposal aims at expanding the available toolbox by introducing an additional level of recognised standards which, thanks to their legal force, would help create greater legal certainty for all market participants.
The “Community of Practice for Better Self and Co-Regulation” (CoP) under the Directorate General CONNECT of the European Commission addresses the question of how self- and co-regulation can play a part in shaping a better regulatory environment in the sector of digital markets. The CoP provides a platform for discussions on this question with high-ranking experts from the political sphere, the business community and civil society, and drafts and debates concrete proposals for implementing this goal.
The idea for the CoP first emerged in the EU Strategy for Corporate Social Responsibility, which included an action aimed at developing a code of good practice for self- and co-regulation exercises in order to make such voluntary standards and regulations more effective. After a public consultation in summer 2012, the Principles for Better Self and Co-Regulation were drafted and the CoP founded and entrusted with the task of constantly improving and disseminating these principles.
SRIW is active in the CoP Steering Committee . In brief, the “Principles for Better Self- and Co-Regulation” set the following standards for effective self- and co-regulation measures:
- Participants - As many as possible potential useful actors should be represented
- Openness - Envisaged actions should be prepared openly and involve all interested parties
- Good faith - Different capabilities of participants should be taken into account, activities outside the action's scope should be coherent with the aim of the action and participants are expected to commit real effort to success
- Objectives – Must be set out clearly and unambiguously and include targets as well as indicators for evaluation purposes
- Legal compliance – Actions must be designed in compliance with applicable law and fundamental rights as enshrined in EU and national law
- Iterative improvements - A prompt start, with accountability and a process of "learning by doing", with sustained interaction between all participants
- Monitoring - Conducted in a way that is sufficiently open and autonomous to command respect from all interested parties
- Evaluation - To allow participants to assess whether the action may be concluded, improved or replaced
- Resolving disputes - By ensuring they receive timely attention. Non-compliance should be subject to a graduated scale of sanctions.
- Financing - Participants will provide the means necessary to fulfil the commitments, and participation of civil society organisations may be supported by public funders or others.
Implementation
The Principles can be downloaded here.
The National IT Summit serves as a central platform for cooperation between the political sphere, the business community, academia and civil society in the process of shaping the digital transformation. The IT Summit is organised as nine platforms and two forums discussing and concretely implementing the topics in the Federal Government’s Digital Agenda with the involvement of the stakeholders named.
SRIW regularly contributes its expertise to the National IT Summit. For example, SRIW has played a significant part in drafting the “Guidelines for Arbitration Rules in the Digital Economy” and the “One Pager on the Simplified Description of Data Privacy Statements”.
For the different Codes of Conduct SRIW can appoint Steering Committees. It’s tasks are, in particular, to:
- regularly evaluate the Code of Conduct in question,
- draft the requisite alignments / changes to the Code,
- to discuss further Code-specific questions.