EDRi responds to Commission “self-regulation” consultation

By EDRi · September 26, 2012

This article is also available in:
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
multistakeholder actions
Deadline: 30 September 2012

EDRi’s tracked changes document

(Contribution by Joe McNamee – EDRi)