MIND THE GAP Private Power, Online Information Flows and EU Law Angela Daly Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, February 2015 (submission) European University Institute Department of Law Mind the Gap: Private Power, Online Information Flows and EU Law V Angela Daly Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Giorgio Monti, European University Institute (EUI Supervisor) Professor Giovanni Sartor, European University Institute Professor Lilian Edwards, University of Strathclyde Professor Chris Marsden, University of Sussex © Angela Daly, 2015 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author SUMMARY This thesis examines how European Union law and regulation address concentrations of private economic power which impede free information flows on the Internet to the detriment of Internet users’ autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users. Illustrative case studies - of Internet provision, search, mobile devices and app stores, and the cloud – are chosen to demonstrate the gaps that exist in current EU law and regulation when applied to concentrations of private power online. It is argued that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failures can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, some ‘quick fixes’ from outside the system are proposed at the end of each case study, namely the potential for applying regulation and/or applying ‘self- help’ solutions, which are mainly technical measures using peer-to-peer design. 5 6 ACKNOWLEDGEMENTS The genesis of this thesis can be found in the (almost) 2 years I spent working as a policy adviser for Ofcom in London. Dissatisfied with the narrow confines in which communications regulation, and the discussions around it, in the UK were taking place, I found my way back to academia as a place in which more radical ideas could be explored. Five years’ later, and now living about as far away from Western Europe as is possible, there are many people in many parts of the world to acknowledge and thank for their help along the way. My initial thanks must go to my supervisor, Giorgio Monti, who has supported me with an open mind and across continents after ‘inheriting’ me as a PhD student in 2010. His comments on my work and guidance have always been insightful and unprejudiced despite the somewhat unorthodox path I have followed as a scholar of communications regulation. I must also thank Giovanni Sartor, also of the European University Institute, for his support and advice especially in the initial years of my PhD. In the penultimate and ultimate years of my doctorate, I have found a welcoming environment as a research fellow in the Swinburne Institute for Social Research, Melbourne, Australia. I would like to thank my Director, Julian Thomas, with great sincerity for all the support he has given me since moving here, both professionally and personally. My gratitude also extends to my colleagues at Swinburne, in particular Amanda Scardamaglia. I have combined researching my PhD with travel beyond Florence and Melbourne, and would like to thank everyone who has facilitated this and helped me along my way, including welcoming me as a visiting researcher in their institutes and departments: Giovanni Ziccardi at the Universita degli Studi di Milano; Oreste Pollicino at the Università commerciale Luigi Bocconi; Nathan Chapman, formerly of Stanford Law School, in whose First Amendment class I was a student during my time there as a visiting researcher and who assisted me in my understanding of US constitutional law; Brigid Martin at UC Hastings who assisted me in my understanding of US antitrust law; John Holloway at the Benemerita Universidad Autonoma 7 de Puebla who welcomed me into his critical theory reading group and facilitated my library access; and Victor Gonzalez Gonzalez at the Instituto Tecnologico Autonomo de Mexico who gave me a quiet space to work in the hustle and bustle of DF. I would also like to thank my initial academic mentors, Timothy Endicott and Grant Lamond of Balliol College, University of Oxford, who have known me since the start of my university journey and have continued to provide support in the form of references throughout these many years, as well as inspiring me with a great love of the philosophical when it comes to the study of law. I have combined the latter years of my PhD with much activism and advocacy in the digital rights space. In particular, I spent an enjoyable couple of months as International Legal Fellow at Electronic Frontier Foundation in San Francisco in early 2012, and would like to thank Katitiza Rodriguez and John Gilmore for their support, both personal and professional. I have greatly benefitted from being around some fantastic creative minds in the form of my peers. In particular I would like to acknowledge the INFOSOC working group at the EUI, past and present, including Primavera De Filippi, Ben Farrand, Kasia Gracz, Emma Linklater, Shara Monteleone, Ben Wagner and Monika Zalnieriute. Finally I would like to thank my family and friends for all their help and support during my PhD, before my PhD started, and (I am sure) after my PhD will finish. I would like to thank in particular my long-suffering parents, Dennis and Barbara, and my sister Caroline who have stood with me and supported me through everything. I would like to thank my extended family on both sides, the Dalys and Waclawskis, for their help and support as well, and for not being too put out when for reasons of work I have not been able to attend important family occasions such as birthdays, engagement parties and weddings. If this thesis passes and the doctorate is awarded, I will be the first person in either side of my family to obtain a PhD, which feels all the more an achievement given my family’s humble origins as refugees and migrants to Scotland from more wretched parts of Europe in more wretched times. 8 As for my friends, you are so numerous and so spread out, I am not sure I have space to mention every one of you and how you have helped me. Suffice it to say, my time at the EUI has been very fruitful in terms of personal relationships and well as the advancement of my education, and from there I would like to thank Anna Riddell and Keiva Carr in particular for all their help, support and the good times! Muchas gracias a la familia Jimenez Rios en Mexico para cuidarnos bien en 2012. Grazie a Matteo per tutto. Melbourne, 2014 9 10 TABLE OF CONTENTS SUMMARY ............................................................................................................................... 5 ACKNOWLEDGEMENTS ..................................................................................................... 7 TABLE OF CONTENTS ....................................................................................................... 11 CHAPTER 1 INTRODUCTION .......................................................................................... 15 1.1 Research question ............................................................................................................... 16 1.2 Focus of research ................................................................................................................ 17 1.3 The Internet and user autonomy ......................................................................................... 23 1.4 Corporate dominance and control online ........................................................................... 29 1.5 Methodology ...................................................................................................................... 34 1.6 Intended contribution ......................................................................................................... 40 1.7 Structure of research ........................................................................................................... 43 CHAPTER 2 COMPETITION AND CONSUMERS IN CYBERSPACE ....................... 49 2.1 The emergence of private power online ............................................................................. 49 a) Technical origins ........................................................................................................... 50 b) Cyberlibertarianism ...................................................................................................... 53 c) The commodification of cyberspace .............................................................................. 56 d) Conglomeration and concentration .............................................................................. 58 2.2 Consumers and the commons ............................................................................................. 61 a) Web 2.0 and commons-based peer production ............................................................. 62 b) Regulation and peer to peer