Benoît Frydman

Co-regulation and the rule of law

Introduction The internet defies the classic state law model, according to which the sovereign state makes and enforces the law on its territory, including by the use of force (Frydman, 1997; Svantesson, 2005). The required bond between state sovereignty, national territory and law is loose when dealing with internet regulation. In addition, international law does not answer the question of which court(s) should have jurisdiction over internet litigation and what law(s) should be applied (Berman, 2002; Svantesson, 2005). In other words, the internet engages regulators to use new methods of drafting and implementing legal rules. Co-regulation is one of the techniques that can be used. Despite the fact that defining “co-regulation” remains challenging and unsettled (Poullet, 2004; Lievens, Dumortier and Ryan, 2006; Hennebel and Lewkowicz, 2007), a theoretical sketch of what the co-regulation model entails can be produced. For analytical purposes, it is convenient to make a distinction between regulators and what Jonathan Zittrain (2003) calls “points of control.” Regulators are public or private bodies willing to influence the behaviors of actors in a field of action. Points of control are any public or private actors that, for any reason, play a strategic role in a particular area. Regarding internet regulation, the method used by regulators consists in leaning on these points of control as regulatory levers. The so-called “co-regulatory mechanism” must be understood in this chapter as a legal device designed to put pressure on the points of control to achieve some regulatory result.