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Table of contents
CHAPTER 1 – MANAGING INTERNET RISKS
1. Why most politicians and regulators will hate this thesis
2. Bringing smart telecommunications regulation to the internet
3. The challenges of regulating access to content on the Internet
4. Current regulatory approaches are uncoordinated, with no guiding methodology
4.1 Right to be forgotten
4.2 Online copyright infringement
4.3 Illegal online gambling
4.4 Child pornography and terrorist propaganda
4.5 Hate speech
4.6 French audiovisual policy
4.7 Apparent lack of coherence
5. Diminishing role of broadcasting regulation
6. A methodology against which to measure regulatory proposals
6.1 Technical measures are inevitable
6.2 Technical measures create harmful side-effects
6.3 A reference methodology will help avoid mistakes
7. Existing literature
8. How the remaining chapters are divided
CHAPTER 2 – PRESENTING THE VARIABLES OF THE COST-BENEFIT EQUATION
1. INTRODUCTION
2. Content policies
2.1 Cybersecurity threats
2.2 Spam and phishing
2.3 Cookies and other form of tracking software
2.4 « Right to be forgotten » content
2.5 Illegal online gambling
2.6 Sale of cigarettes and alcohol
2.7 Counterfeit drugs, illegal drugs
2.8 Intellectual infringement
2.9 Defamation and the protection of privacy
2.10 Websites promoting racial, ethnic or religious hatred
2.11 Regulations designed to protect local culture and language
2.12 Advertising laws
2.13 Protection of minors against adult content
2.14 Child pornography
2.15 Content promoting terrorism
3. Assisting law enforcement
4. Valuing content policies and their enforcement
5. Internet intermediaries
5.1 Search engines
5.2 Hosting providers
5.3 Internet access providers
5.4 Internet domain name registrar
5.5 Payment service providers
5.6 Internet advertising networks
5.7 Application stores
5.8 Content delivery networks (CDNs)
5.9 Internet backbone providers
5.10 End-user software
5.11 Set-top boxes or modems
5.12 Device operating systems
6. The institutional framework
7. Negative externalities caused by Internet intermediary actions
7.1 Adverse effects on fundamental rights
7.2 Internet-specific harms
7.3 Unintended effects linked to user behavior
7.4 International effects
8. Solving the problem so as to maximizing social benefits
CHAPTER 3 – BALANCING FUNDAMENTAL RIGHTS
1. INTRODUCTION
2. What are fundamental rights?
2.1 Characteristics of fundamental rights
2.2 The cost of fundamental rights
2.3 Economic vs. non-economic rights
2.4 The expressive value of fundamental rights
3. Freedom of expression
3.1 General limitations to freedom of expression
3.2 Is the Internet like television?
3.3 The nature of harms to freedom of expression
3.4 Internet intermediary liability and free speech
3.5 The Dennis formula and its limits
3.6 Law and economics explanations for the high protection given to freedom of expression
3.7 Freedom of expression and self-regulatory measures
4. Privacy
4.1 Privacy and data protection as fundamental rights
4.2 Privacy rights in law and economics literature
4.3 Behavioral economics and privacy
4.4 Cost-benefit analysis applied to data protection
4.5 How to measure costs and benefits in privacy
5. Fundamental rights and proportionality
5.1 The three-criteria test of the European Court of Human Rights
5.2 Should a court give deference to lawmakers’ balancing?
5.3 Identification of the conflicting rights and interests
5.4 Balancing the relevant interests
5.5 Absolute versus relative proportionality, cost-benefit analysis
5.6 Proportionality and the « least injurious means » test
5.7 Robert Alexy’s balancing test
5.8 Nussbaum’s ethical filter
5.9 Fundamental rights and the Hand formula
Chapter 4 – institutional alternatives for regulating access to Internet content
1. CATEGORIES OF INSTITUTIONAL OPTIONS
2. General liability or property rules enforced by the courts
2.1 Advantages and disadvantages of regulation by courts
2.2 Summary table
3. Administrative Regulation
3.1 Division of responsibilities between the lawmaker and the regulator
3.2 General versus detailed legislation
3.3 Regulatory authorities have better access to information and industry expertise
3.4 Risk of industry capture
3.5 Risk of regulatory creep
3.6 Territorial limitations to regulators’ powers
3.7 Example of administrative regulation: the FTC’s regulation of privacy
3.8 Summary table
4. Self Regulation
4.1 Self-regulation and the Internet
4.2 Self-regulation works well in groups with stable membership
4.3 Self-regulation works well where the self-regulatory organization (SRO) controls access to a scarce resource
4.4 The difference between unilateral self-regulation and multilateral self-regulation
4.5 Unilateral self-regulation by Internet platforms
4.6 Multilateral self-regulation and SROs
4.7 Conflicts of interest in SRO enforcement
4.8 Self-regulatory rules may not represent the public interest
4.9 Self-regulation and legislative threat
4.10 Example of multilateral self-regulation: the advertising industry
4.11 Summary table
5. Co-Regulation
5.1 The role of the state in co-regulation
5.2 Co-regulation and accountability
5.3 Preservation of public interest objectives
5.4 Enhanced legitimacy of the rules
5.5 Co-regulation in telecommunications regulation
5.6 Co-regulation in data privacy
5.7 Summary table
6. Brousseau’s multilevel approach to governance
7. Internet requires a « racket and strings » regulatory approach
CHAPTER 5 – PRINCIPLES OF BETTER REGULATION APPLIED TO INTERNET
1. INTRODUCTION
2. LITERATURE ON BETTER REGULATION
2.1 Early scholarship: Breyer, Morrall, Hahn, and Sunstein
2.2 Dieter Helm examines the meaning of « good regulation »
3. OECD PRINCIPLES OF BETTER REGULATION
3.1 OECD 2012 Recommendation on Regulatory Policy
3.2 OECD 2011 recommendations on internet policy making
4. Better regulation methodology in the United States
4.1 Peer review by OIRA
4.2 Creating a baseline scenario
4.3 Identifying the relevant harm
4.4 Identifying regulatory options
4.5 Applying cost-benefit analysis to each alternative
4.6 How to quantify costs and benefits
4.7 Benefits and costs that are difficult to monetize
5. Better regulation methodology in Europe
5.1 European better regulation guidelines
5.2 European Commission guidelines assessing fundamental rights in impact assessments
5.3 2015 European toolbox for better regulation
5.4 The Renda study on cost-benefit analyses
5.5 Areas requiring further study
6. Impacts on innovation
6.1 Why Internet firms innovate
6.2 Knut Blind explains link between regulation and innovation
7. Adaptive or experimental regulation
8. Criticisms of cost-benefit analyses in regulatory decisions
8.1 Robert Baldwin asserts that impact assessments are ill-adapted to political realities
8.2 Radaelli and De Francesco compare U.S. and E.U. approaches
8.3 Robert Hahn and Paul Tetlock evaluate the costs of regulatory impact assessments in the U.S.
8.4 Ackerman and Heinzerling criticize CBAs that attempt to « price the priceless »
8.5 Greenstone: cost-benefit analyses require experimentation
9. Why conduct a cost-benefit analysis?
CHAPTER 6 – CREATING A METHODOLOGY FOR ASSESSING REGULATORY OPTIONS
1. BRINGING IT ALL TOGETHER
2. Elements of the methodology
3. The questionnaire
3.1 Analysis of the underlying content policy that needs to be enforced
3.2 The range of Internet intermediaries and actions they could take to help enforce the content policy, ranging from the least intrusive to the most intrusive
3.3 Remedies used in other countries
3.4 The institutional alternatives, including liability and property rules, self-regulation, co-regulation, and/or full-fledged administrative regulation
3.5 The fundamental rights affected by each proposed measure
3.6 Internet ecosystem
3.7 Behavorial economics and « nudges »
3.8 Adaptive and experimental regulation
4. A cost-benefit analysis under constraint
4.1 How to deal with hard-to-quantify benefits and costs?
4.2 Prepare a baseline scenario of no regulatory intervention, takin into account dynamic aspects such as possible evolutions of Internet technology and markets, and application of existing laws and self-regulatory policies
4.3 Measuring benefits compared to the baseline scenario
4.4 The direct costs resulting from each proposal, including direct costs for Internet intermediaries, their customers, and taxpayers
4.5 The indirect costs resulting from each proposal, including relative impacts on fundamental rights, on the internet ecosystem and innovation
4.6 How to rank proposals
4.7 Applying additional constraints
4.8 Conclusion on how to rank proposals
5. Public consultation
6. Institutional peer review
7. Periodic review of the measure
8. Conclusion
CHAPTER 7 – STRENGTHS AND WEAKNESSES OF THE PROPOSED METHODOLOGY AND AREAS OF FUTURE RESEARCH
1. STRENGTHS OF THE METHODOLOGY
2. Weaknesses of the methodology, and possible responses
3. Quantifying the unquantifiable
