miércoles, 22 de julio de 2015

The case for #digital regulations (II)

One of the main naggings about the EU digital policies that comes from the other side of the pond is the usage of regulation as the solution for any challenge. On one hand, it is said that regulation stifles innovation. On the other hand, it is pointed that the legislative process is always trying to solve the problem from the past. As I stated in a previous post, I´m against this view that drives in the end to the conclusion that it would be better not to develop any kind of legislation for the digital economy. It is not only that I am firm believer that legislation is a barrier for the forces of the jungle, it is also that it is easy to appreciate that the lack of legislation it is filled up with judges decisions that in the end cause the arise of new problems.

Some examples of the situation described above could be found in the area of personal data protection. The European Commission proposed a new regulation on data protection in 2012. One of the main objectives of the proposal was to update the legal framework in order to tackle the challenges posed by the digital economy. Among this challenges were the so-called right to be forgotten and the need to overcome the fragmentation of the regulation institutional framework in Europe. The challenges were so real that in the end, due to the slowness of the legislative process, we have had a sentence of the court about the right to be forgotten and we are waiting a decission on who is the regulatory authority that has the power to take decisions on the matter and the question of data transfers. The consequence of the first case has been a sentence that has provoked more questions than answers and subject to continuous reinterpretations. It is reasonable to expect the same for the second case.

But it is not only in the area of personal data protection we can find this kind of cases. The so-called shared economy companies are stressing also the digital economy legal framework and will be the cause of sentences that will cause a reinterpretation of the legal framework of unknown consequences. The outstanding case in this area is the question about the nature of Uber as a transport or an information society intermediary company. The void of a decision to review the definition of the definition of intermediary in the information society legislation will be the cause of the outsourcing of the legislative process to the courts.

The human beings are adverse to the void. Where there is a clear need of digital regulations the lack of it is sooner or later fill up with patches that in the end are worse solutions. We can not expect a judge to be as informed on digital issues as the set of individuals that compose a legislative authority. Instead of giving reasons in order to avoid to have full and coherent legislations we should push the legislative authorities to fulfill its role on and agile manner.

No hay comentarios:

Publicar un comentario

palyginti kainas