MAMCA Workshop on “Scenario Building”- Osborne Clarke conclusions on legal issues in future scenarios
By Stefania Grosso & Yves Stans, OC
The consortium of Mobility4EU has asked Osborne Clarke (OC) to intervene at the end of the MAMCA workshop on 21st October 2016 to wrap up what was debated during the day from a legal angle. The scenarios on which we commented were the following:
To do so, OC observed the brainstorming exercise that went on all along the workshop, during which stakeholders from different sectors of the industry shared their experiences and expressed their concerns.
Since the four scenarios envisaged are extreme ones, we opted for four branches of law that would take pride of place in each of them.
Slow is Beautiful and Data Protection
This scenario envisages a world in which people are scared of technology and the legislator is weak. The communities become more and more withdrawn into themselves: they build up barriers against the outside world and strive to become independent and autonomous. People go back to bartering and the government slows down technological development through, for instance, cuts in public funding for research and innovation, and by undertaking no interoperability initiatives. What’s most likely to happen in this kind of environment is that the legislator will focus on respecting citizens’ privacy and protecting their data, while implementing rules that are very burdensome on the development of businesses.
Contemporary examples of this scenario can be found in:
The current cookie legislation, which is driven by data protection and privacy concerns, but which is not very effective, together with the soon to be in force General Data Protection Regulation, which imposes a heavier burden on digital businesses.
The Brexit case, in which we are witnessing a nation closing in on itself; and the scandal of smart TVs and connected devices sold with their cameras and microphones turned on (to be turned off by the user), for which the CIA is now under attack.
Minimum Carbon and Energy
Conversely from the previous case, although people are reluctant to let technology become part of their everyday lives, the government is very active in this scenario. Companies don’t focus on data management, yet the government does. As in the scenario just described, communities tend to localise themselves, to the point of using home-made 3D printing instead of multinational products. The attention on reduction of our environmental footprint leads to personal movements being constantly monitored and to the implementation of a carbon tax. As you may anticipate, this kind of scenario would lead to the legislator focusing on the introduction of energy-related legislation.
Contemporary examples of this scenario can be found in:
The EU 2030 Climate Framework that, together with the recent Paris Protocol, imposes a big challenge on Europe for the reduction of GHG emissions, the boost in renewables and the energy efficiency increase in the near future; and
Car-sharing and bike-sharing models implemented in all relevant European urban centres, i.e. zipcar, vélo bleu, etc.
Data World and Competition
In a world where people embrace and trust technology, yet where the legislator is lazy, the most probable approach would be a reactionary one. Countries either do not have resources or prefer to leave the work to big companies, i.e. data management, and benefit from the results afterwards. However, the government quickly realises that this corporation power raises serious competition concerns, as rules and standardisation are now shaped by manufacturers. Most probably, lobbyists will push for automation errors to be defined as Acts of God, so leaving big tech companies free from liability. Also, terms and conditions are imposed on consumers and the State is not strong enough to let tech giants respect consumer protection laws.
Contemporary examples of this scenario can be found in:
The current attention put by the Commission on platforms, accompanied by the on-going investigations carried out by competition authorities on the value of data for platforms, to assess the use of this criterion in the definition of market power; and
The unquestioned growing power of online search engines in online visibility and mapping services; likewise the experiment conducted by F-Secure in London’s financial district in June 2014, where the company set up a free Wi-Fi hotspot with an “Herod clause” in the terms and conditions: in exchange for the Wi-Fi, “the recipient agreed to assign their first born child to [F-Secure] for the duration of eternity”. People accepted.
Digital Nomads and Consumers
Finally, a scenario that seems the most probable to turn into a reality is the one where both people are keen to use all new technologies that become available on the market. Their governments are actively letting this happen. The legislator applies a flexible regulatory approach and focuses on guaranteeing the interoperability among different systems, thus allowing technologic solutions to spread cross-borders. People travel and the services are built taking into account the needs of the ageing population as well. This climax would lead to the need for a punctual application of consumer protection legislation and its current update to take into account the technological developments, as terms and conditions are not really negotiated or accepted by consumers using online services.
Contemporary examples of this scenario can be found in:
The on-going reforms in the framework of the Digital Single Market strategy, all of them addressing directly or indirectly consumer protection issues; and
The current raise of cryptocurrencies and the attention of the financial services sector to make use of this innovation and of governments to regulate them.
To conclude, as you can see, these scenarios are not that far from our reality, as we can find aspects of each of them in the European Union as we know it today. Let’s see what will tilt the balance and towards which direction.
