EDRi responds to Commission “self-regulation” consultation
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Deutsch: EDRi-Stellungnahme zur EU-Konsultation zur Selbstregulierung
The Commission is asking for feedback on a draft “code” for what it describes as “multistakeholder actions”. The intention is to use the final text as a blueprint for future self- and co-regulatory actions, in order to ensure that certain best practices are respected. The deadline is at the end of this week (30 September 2012) and EDRi has already submitted its response.
We have been (sometimes very!) critical of the Commission's approach to self-regulation – most particularly when it is not self-regulation at all but privatised law enforcement, as we see in the now infamous Clean IT project and as was also proposed in ACTA. If the Commission were currently following the draft code, many of the excesses that we see today would not be happening. For example, the chaotic and expensive two-year “brainstorming” of Clean IT would never have happened because the code stipulates the establishment, from the outset, of “clear and unambiguous” objectives, “starting from a well-defined baseline.” Indeed, the confusion regarding the specific aims of the project is one of the main reasons that EDRi felt that it was inappropriate to participate in that group.
While the draft proposed by the European Commission would represent a solid step forward, there are still valuable improvements that would need to be made. For example, contrary to the process followed by Clean IT, there should be an “up front” understanding that any outcome cannot legally result in restrictions of fundamental rights.
Secondly, it is very important that any involvement from public authorities in self-regulatory measures result in those authorities agreeing to take a formal position to either endorse or reject the outcome of the project. The alternative is power without responsibility – a public authority can convene industry discussions, push for a particular outcome and then claim that the entire process was “industry's idea.” We also suggest that the involvement of the public authority be under constant review and only allowed to continue when a majority of stakeholders are in favour. Power without responsibility is a corrosive and corrupting factor for any administration. Our response therefore highlights this point as being one of critical importance.
The third major point of our response refers to the actions that should be taken if a stakeholder group resigns from a multi-stakeholder process. In the Commission's draft code, representativeness is given a high degree of priority, but the guarantees to ensure this is actually respected are somewhat weak. For example, there is no clarity as to what should be done if a stakeholder group loses faith in the process and resigns. Our suggestion is that the group should have the right to produce a statement of objections and for this to be appended to the final, published agreement. We also suggest that the resignation of key stakeholder groups or an agreed proportion of participants would automatically trigger the ending of the project. In the same vein, we propose that a level of non-compliance should be agreed which, if attained, would also lead to the ending of the project.
The Commission consultation comes in two parts – a short questionnaire and a PDF/DOC of the draft code, which should be submitted with “tracked changes” after being edited in line with the respondent's views. We encourage other civil society groups and also individuals to respond – and we will not complain if any of our analysis is plagiarised.
On-line public consultation on Code for Effective Open Voluntarism:
Good design principles for self- and co-regulation and other
Deadline: 30 September 2012
EDRi's tracked changes document
(Contribution by Joe McNamee - EDRi)