Predictions 2018 – 12

December 12, 2017

From Dr Monica Horten 

Regulatory alignment, regulatory divergence
or even regulatory shadowing  – what will
it all mean for communications and technology industries, and  the users of their services, in 2018?

In Britain, we face a time-limited question,
the response to which will have consequences for years to come. I am of course
referring to the 8 December political agreement on the terms of the Brexit
‘divorce’. Amidst all the smoke and mirrors, this agreement is only the
precursor to a detailed final agreement. It does not close off the arguments
about hard vs soft, or even Norway vs Canada vs Singapore. On the contrary, it is
the first snip of the fabric and the hard bargaining is only just beginning.

Regulatory alignment with the Single Market
would seem to be the EU bottom line, but the language in the negotiators’ joint
report is, probably deliberately, opaque. In the case of a ‘no-deal’ scenario,
the severity of the consequences for Britain could be dependent on the interpretation
of the ‘full alignment’ language. As I write this, I have seen a multiplicity
of interpretations ranging from a limited manoeuvre, to a complete sea-change
of direction.

So will we be inside or outside, aligned or
diverging, excluded or shadowing? The position taken will be critical with
regard to the Digital Single Market.

Communications and technology industries have
had a low profile in the public debate compared with other sectors, but it is
clear that they will not escape the consequences. There are issues yet to be
resolved with regard to Digital Single Market (DSM) policy, such as
intermediary liability and copyright (Article 13 of the proposed new Copyright Directive)
or video-sharing platforms (Article 28 of the proposed new Audio-visual Media
Services Directive). It is arguably in our national interest to be able to
shape these outcomes. Britain already has decreasing influence, yet ‘full
alignment’ presumes we will retain an interest for the long term.

The political decision will determine the
future opportunities for British digital businesses. Large technology and
communications  businesses can adapt, for
example, by moving their servers to an  EU27
jurisdiction, but smaller players and users could be negatively  impacted in the face of a ‘shifting sands’
regulatory landscape.

How to square these different circles to get
the best for British technology businesses and Internet users – that is the
challenge for 2018.

Dr Monica Horten is a Visiting Fellow at the
London School of Economics & Political Science, Council of Europe expert
and author (The Closing of the Net (Polity, 2016)

Twitter: @Iptegrity