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Planes, Trains and Automobiles – 2nd June 2020

I will be writing more about whether internet platforms should be treated as ‘publishers’ of the content they carry.

Before I do that, I want first to address some phrases that are thrown around which sound appealing but become more complex under closer examination.

We often hear people say they want a ‘level playing field’ and to argue for ‘same services, same rules’.

What they usually mean by this is that any regulation that applies to classic industries should be applied to new internet platforms. 

For example, if media companies are legally liable for any content they publish then they argue that the same responsibilities should fall on social media services and other internet platforms.

These sound entirely reasonable propositions – who can be against fairness?

And there should indeed be a level playing field between all services that are in fact the ‘same’, but closer inspection shows us that services that look superficially similar may in fact be quite different.

London to Edinburgh

A transport analogy may help illustrate how we should look beyond similar functionality to understand when services are actually on the same ‘playing field’ and when not.

If I want to travel from London, where I am writing this, to Edinburgh in Scotland, I could (at least in normal times) take a plane, or a train, or drive myself in a car.

Each of these transport methods offers the same functionality of moving me from London to Edinburgh

They may offer similar total transit times and be close in terms of price depending on a range of factors that vary from day to day.

Each mode of transport has its own distinct regulatory framework and nobody would think it sensible to apply airplane safety regulation to private cars, or allow free boarding of planes as we do for trains.

Fairness means that the same regulations should apply to all the players in each transport category – airlines, train companies and private car drivers – but not that regulations should reach from one category to another.

What we have are different services operating different rules but with level regulatory playing fields within each class of service.

Returning to internet platforms, we see similar functionality being taken as an indicator of ‘sameness’ when there are often in fact profound differences in how they operate from classic forms of industry.

It is true that I can choose to spend my time reading stories on a social media platform or reading stories from a classic media service. 

Some of the stories in my social media feed may even originate from the classic media services giving an even stronger impression of similarity.

Both types of service may derive income from advertising and feel they are in competition for this revenue.

But the models for how content is sourced and distributed by each type of service, and their core business propositions are fundamentally different.

As another example, if I want to send a short message to someone, I can use an SMS service from my phone provider or one of many messaging apps.

The functionality can feel very similar but the underlying architecture and business models for these services are quite different.

SMS services are covered by a regulatory framework that reflects the fact that they are offered as part of a paid-for telecoms package.

There is no specific regulatory framework for messaging apps at present but they have a number of general legal compliance obligations depending on where they have their HQ and users.

As a regulatory framework is developed for messaging services, it is neither necessary nor desirable for this to be the same as that applied to SMS.

Different Standards

People sometimes accept that underlying services are different but then move on to argue for equality of outcome.

In this model, they would say that performance standards can be set the same across different classes of service.

If we return to our transport analogy, we see how regulatory goals even for very important issues are not identical but vary across the classes.

UK authorities rightly focus on keeping road deaths down but around 1,800 people are still unfortunately killed on UK roads each year.

The goal for the number of deaths from air travel is zero and strenuous measures are taken to ensure that remains the case.

There are more accidents on railways than with air travel but the numbers are still very low when compared with cars and each incident that causes fatalities is reviewed extensively.

Private cars could be regulated to meet the same target of zero deaths but this would dramatically change the nature of road travel and the current trade-off between flexibility and risk is seen as preferable.

If we stretch this over into the internet space, we might compare broadcasters with airlines, newspapers with railways, and social media with private cars.

A good regulatory framework would create a level playing field for all players in each of these sectors.

It would set targets for what it hopes to achieve with regulation within each sector but these will vary according to what is realistic for each medium.

We see this today as there are very detailed standards for our broadcasters and an active regulator that expects close adherence to these.

Newspapers are exposed to less detailed regulation than broadcasters and have more flexibility in how they operate.

And social media users, like private car drivers, have considerable freedoms but this also creates more risk than we would accept in the other media.

One Regulator To Rule Them All

If you accept the argument that different sectors need different rules then there is a choice about whether to have one regulator or multiple regulators to implement these.

This has long been discussed in tech policy circles under the banner of ‘convergence’.

A single regulator is attractive if you are keen to see consistency of approach and for there to be one agency that has a view into everything that is happening.

The multiple regulator model allows for deeper specialisation and creates a different dynamic for resolving issues between sectors.

In the world of transport, we see multiple highly specialised regulators with cross-sectoral issues addressed at a political level within relevant government departments.

The UK brought the broadcasting and telecommunications sectors into the communications regulator, Ofcom, and this is widely regarded as having been successful.

Notably, press regulation does not sit within this converged framework but has its own structures that are still the subject of much debate.

The question of whether to have a separate regulator for internet platforms or to roll this into Ofcom’s remit is an open one.

Whichever eventual structure is chosen, there will be a need to build a body of expertise within the regulator so that appropriate rules can be developed for each ‘playing field’.

Effective Regulation

It is common to see sectors carrying out a lot of day-to-day regulatory tasks themselves under the oversight of a formal authority.

This can be a matter of controversy as we have seen in the transport sector with VW cheating on their emissions tests and claims that there was insufficient oversight of Boeing’s certification of one of its aircraft.

There will always be a tension between keeping regulators at a sensible size while ensuring regulated entities are not able to avoid their obligations.

Learning from the experience other sectors will be important as we develop new regulatory frameworks for internet services.

I hope this quick jaunt around planes, trains and automobiles was a useful precursor to talking about what effective regulatory models might look like.

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