25.09.2014 - At the discussion event Regeln im Netz – Ende des Rechtsstaats oder verteilte Verantwortung (Rules in the Net – The End of the Constitutional State or Shared Responsibilities), Prof. Dr. Spindler and Prof. Dr. Thorun presented their Position Paper with proposed guidelines for a regulatory policy in the digital sphere. The subsequent discussion with a panel comprising Gerd Billen (State Secretary to the Federal Ministry of Justice and Consumer Protection (BMJV)), Dr. Günter Krings (Parliamentary State Secretary to the Federal Ministry of the Interior (BMI)) Renate Künast (Chair of the Parliamentary Committee on Legal Affairs and Consumer Protection) and Harald Lemke (SRIW’s Chief Executive Officer) debated the responsibilities of the state, business sector, and civil society in the digital world.

The participants all accepted the need for the state to define core values and objectives, and guarantee fundamental rights. It was, though, noted that the business sector and civil society are facing an increasing challenge to concretise these objectives through codes of conduct and other instruments of self- and co-regulation. Despite a discussion heated at times, all participants agreed that the Position Paper's recommendations provide a solid basis for establishing the correct mix of instruments and the appropriate regulatory framework. 

In essence, Professor Spindler and Professor Thorun  put forward the following points:

• 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 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.

• The authors recommend granting co-regulation a larger role in the regulating the information society and anchoring minimum requirements and incentives in law under the Federal Government’s Digital Agenda.

This Position Paper represents interim findings as part of a study to establish the guidelines for a regulatory policy in the digital sphere. The results of the discussion flow into drafting an expert opinion. The political representatives expressed their readiness to join SRIW and other actors in discussions once the expert opinion was finalised to consider the concrete steps that could be taken to improve the framework conditions and incentives for co-regulation approaches.

 

The Position Paper (in German) can be downloaded here: Download