Internet co-regulation and constitutionalism: Towards European judicial review

Author: Marsden, Christopher T.

Source: International Review of Law, Computers & Technology, Volume 26, Numbers 2-3, 1 November 2012 , pp. 211-228(18)

Publisher: Routledge, part of the Taylor & Francis Group

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Abstract:

This article analyzes co-regulation, by defining and exploring its recent institutional history in the Internet environment. It then assesses the legal definitions and taxonomies of co-regulation before constructing a 12-point scale of self- and co-regulation. The term `co-regulation' encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. Co-regulation has enriched conceptions of `soft law' or `governance' in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy more than self-regulation, which is defined by the absence of formal roles for the nation-state or European law. Co-regulation is often identified with the rise of the `new governance' in the 1990s. Recent European case law has seen a long overdue emphasis placed on human rights in judicial review of co-regulatory arrangements. Without regulation responsive to both the market and the need for constitutional protection of fundamental rights, Internet regulatory measures cannot be self-sustaining.

Keywords: Internet law; co-regulation; self-regulation; judicial review; human rights

Document Type: Research article

DOI: http://dx.doi.org/10.1080/13600869.2012.698450

Affiliations: 1: Essex School of Law, University of Essex, Wivenhoe ParkColchester,CO4 3SQ, UK

Publication date: 2012-11-01

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