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Regulating the digital economy in Europe: Why the industry needs to be more outspoken.

avatar  Niko Härting

At dmexco in Cologne today, I took part in a policy panel on “Big Data Advertising – EU in a clash between regulations and innovations”. Here are my thoughts on what the digital industry should bear in mind when discussing regulation in Europe:

1. Rethink “yes but” Strategy.

The digital industry needs to be more vocal when it comes to criticizing regulations. You will never convince the Jan Albrechts, Viviane Redings and Martin Schulzs of this world. This should be the lesson of the GDPR. Too often I heard industry leaders and representatives extensively praising the GDPR proposals  and then regretting that the GDPR does not contain a single little loophole, a tiny exception for their own company or industry.

“Yes but” strategies have one major flaw: They rely on dishonesty and on the vain assumption that such lack of honesty will remain unnoticed.

In private discussions, industry leaders tend to take clear, if not scathing views on regulations. In order to be heard and understood, they need to be just as vocal in public, just as undiplomatic as the Jan Albrechts, Viviane Redings and Martin Schulzs.

2. Liaise with NGOs

There is substantial common ground between the digital industry and NGOs. The digital industry should enter into a more intensive and lasting dialogue with NGOs as there are obvious common interests. Recent cases involving Apple and Micorosoft have thrown a spotlight on broad common ground.

Common interest no. 1 is government surveillance and striking the right balance between online freedom and national security. Internet freedom is, at the same time, the freedom of digital enterprises and the freedom of citizens using the online services.

Data protection, copyright, hate speech: Regulation of the digital market, inadvertedly means restrictions on free information and on the freedom of communication. The freedom of communication needs strong allies in Europe. Both the digital industry and NGOs are natural allies on this issue.

3. Do Not Buy the “level playing field” Saga

The focus of both the GDPR and the Digital Single Market Reform is quite clearly on US companies, on the so-called “internet giants”. And there is this saga that is repeated over and over again: We need regulation in order to create a “level playing field” between European and US companies.

Unfortunately, I have not only come across regulators, MPs and journalists believing the “level playing field” saga. I have also come across industry representatives believing in regulation as a means to rein US competitors in.

The truth of the matter is different: The Googles, Facebooks and Microsofts of this world can afford compliance. Hiring hundreds of lawyers was something Google could afford after the CJEU created a “right to be forgotten” in its Google Spain decision (CJEU, 13 May 2014 – C-131/12, CRi 2014, 77 with remarks from a US perspective by Spelman/Towle and remarks from an Irish perspective by Tobin). Smaller European companies, including start-ups, are equally affected by such regulation. Typically, compliance with ever new rules and regulations will be much more of a palpable burden on them than on their US competitors. At the end of the day, regulation will lead to a “playing field” that is rather tilted and anything but “even”.

 

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Mehr zum Autor: RA Prof. Niko Härting ist namensgebender Partner von HÄRTING Rechtsanwälte, Berlin. Er ist Mitglied der Schriftleitung Computer und Recht (CR) und ständiger Mitarbeiter vom IT-Rechtsberater (ITRB) und vom IP-Rechtsberater (IPRB). Er hat das Standardwerk zum Internetrecht, 5. Aufl. 2014, verfasst und betreut den Webdesign-Vertrag in Redeker (Hrsg.), Handbuch der IT-Verträge (Loseblatt). Zuletzt erschienen: "Datenschutz-Grundverordnung".

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