July 15, 2016
In Senegal, the Autorité de régulation des télécommunications et des postes (ARTP ; English translation: Telecommunications and Posts Regulatory Authority) has, just like all regulators, inherent powers to impose sanctions. In general, the important thing is not only to exercise this sanctioning power but to exercise it in a way that reinforces the authority of the Regulator. In this perspective, the new Sonatel sanction decision is important.
As a sanctions always carry a heavier weight when people are made aware of it, the Director General of the Artp issued a press release, that has been flagged as particularly important, and held a press conference (in French) on a particularly serious sanction imposed following what the Regulator considers as the non-fulfilment of obligations stemming from formal notices (which, by the way, the telecom operator challenges on the merits).
On 21 November 2014 indeed, the Sonatel was given a formal notice from the Artp to respect consumer rights. As the code of telecommunications provides since its modification in 2014, operators shall "prendre les mesures appropriées de dimensionnement de leurs réseaux de nature à garantir à leurs clients un accès ininterrompu à leur service client commercial ou technique en respectant un taux d’efficacité minimal" (translation: "take appropriate measures to size their networks in a way that provides their consumers with an uninterrupted access to their customer service (sales service and technical support) which would respect a minimum efficiency rate") set by the Regulator itself- as to, namely, ensure that the right of consumers to be informed is satisfied (as regards billing mechanisms) and that their calls to consumer services remain free of charge. As the Regulator estimated that the Sonatel was not complying with such regulations, it conducted a formal investigation and notified a statement of objections to the operator, before sending on 28 January 2015 a second formal notice for the same reasons.
On 14 July 2016, the Regulator imposed a sanction on Sonatel since the it still estimated that the operator's behavior still was not leading to a compliant situation as regards the consumer right to be informed. The sanction, as stated in the Sonatel decision, is 13 billion 959 million FCfa (c. €20m), i.e., 15% of Sonatel's 2015 turnover. The sanction decision also provides that if the operator does not enforce it, an additional penalty of 10m FCfa (c. €15,000) per day will be charged.
The operator, however, challenges this sanction insofar as it estimates that its behavior is not to be blamed. To support its claim, Sonatel avails itself from the fact that upon reception of the first formal notice, it undertook a 'progressive compliance' with the requirements process as regards its network, then let the Regulator know about it, etc. It is henceforth to lodge an appeal.
The issue at stake, therefore, is to know whether the obligations on operators are obligations regarding the means used (that is to say, means obligations), or, conversely, if they are obligations to produce results (performance obligations). If they are means obligations, then the operator is right. However, considering the efficiency and effectivity principes that are closely linked with the teleological nature of Regulation, it is more likely that such obligations are performance obligations.
For instance, in France, the Commission Informatiques et Libertés (French Data Protection Authority- CNIL) considered on 1 March 2016!footnote-42 that the obligations on operators to have accurate and complete data are performance obligations and not mere means obligations.
Thus, there is probably more to follow with this Sonatel decision. The day the press release was issued, the operator stated it intended to lodge a hierarchical appeal before the Minister.
The next day, the Director General of the Artp stated in the press (in French) that under the Senegal law, the appeal could only be lodged before a jurisdiction, or before... the Regulatory Authority itself (request for reconsideration - in French : "recours gracieux").
This situation is thus a great reminder that new illustrations of the interplays between Regulation and Politics can always be found.
July 6, 2016
The British want to be first in the upcoming digital economy.
That is why a draft 'Digital Economy' bill has been introduced.
July 4, 2016
On 30 June 2016, Sébastien Soriano, President of the French Telecommunications Authority (Autorité de Régulation des Communications Electroniques et des Postes - ARCEP) gave an interview to the French magazine L’Usine digitale (in French).
Speaking to the press is a way for the Regulator to reach everyone, including policymakers, European institutions, and fellow Regulators who also seek to compete for space in the digital area.
As he reported: "Nous arrivons aujourd’hui, avec l'irruption du numérique, à un acte 2 de la régulation. Il y a 20 ans, on est passé du modèle PTT où l’Etat produisait le service public, au modèle d’État-régulateur qui a permis l’ouverture à la concurrence. Ce modèle vise à une bonne organisation du marché avec des outils de pilotage efficaces, mais parfois très intrusifs : les licences mobiles, qui sont des contrats assortis de sanctions administratives en cas de non-respect des obligations, ou le dégroupage, qui est une intervention sur la propriété privée… Aujourd’hui il nous faut franchir une étape nouvelle et nous projeter dans la suite, repenser nos outils pour permettre, en complément, une régulation plus focalisée, plus humble et plus agile". We can translate this passage as it follows : “As of today, considering the onset of digital, we are getting to a second phase for Regulation. Over the past 20 years, we went from the ‘PTT model’, where the State provided for public service, to a new Regulatory State model that enabled competition to thrive. This model aims for good market organization with effective management tools, which may be sometimes very intrusive: e.g., mobile licenses, which are agreements that include administrative penalties in the event of failure to comply with its provisions, or unbundled access, which relates to a State intervention on private ownership… Today, we need to take it another step further and plan for the future, reconsider our tools to allow for a Regulation that would be better focused, humbler and nimbler”.
Whatever “Phase 1” was would thus be already outpaced. Farewell stringent public service, so long market openings to competition. Such an understanding of Regulation was certainly consistent with the idea that Regulation was only meant to be temporary, namely considering the everlasting protection of personal data by the dedicated supervisory authority (Commission Nationale Informatique et Libertés, CNIL)…
We would then need to implement “Phase 2” and, as Sébastien Soriano advises, to “Regulate by the multitude”, which is "a concept that includes consumers, but also users, observers, and the civil society as a whole. The key question is how to use the power of information to get the greatest possible leverage on the market while relying on the multitude. The answer is clear: Regulation by data" ("La multitude, ce sont les utilisateurs, les observateurs, la société civile. Cela inclut les consommateurs, mais pas uniquement. Et la question centrale, c’est comment utiliser le pouvoir de l’information pour avoir un maximum d'effet de levier sur le marché et grâce à la multitude. La réponse, c’est la régulation par la data.").
Like all the others, the Telecom Regulator introduces himself as a sort of ‘natural’ Regulator for digital activities, as he relies on the key notion that is information. In doing so, he is seeking allies that are just as natural as he is— that is to say, consumers. Consumers fall indeed into the scope of the Regulator insofar as they provide him with the information he needs to Regulate the digital sector and space.
The Regulator thus does not define himself anymore as the one that protects consumers against the market, but as the one that binds the two together, transforming the complaint into a civic act: “There’s a problem. As a consumer, I am alerting you as a Regulator who has the means to regulate market failures and whom I shall let operate”.
In such a statement, the ARCEP not only becomes the ‘natural’ digital Regulator, but it also become the one that operates on the grounds of information brought by the web-user, who is protected by and who somehow benefits in return from the action of the Regulator.
Two concluding thoughts:
June 24, 2016
The Autorité des Marchés Financiers (AMF- French Prudential Supervision Authority) set up a Scientific Advisory Board under the supervision of its president Gérard Rameix, who is also president of the AMF.
The Scientific Advisory Board chose ‘Financial education in the digital era’ as the theme of its annual conference, which was held on 20 June 2016 in partnership with Paris School of Economics.
The conference was opened by François Villeroy de Galhau, Governor of the Banque de France (France’s central bank). He stated that financial literacy “shall help everyone make informed decisions”. In this regard, financial literacy is a “factor for economic efficiency and social fairness”, which justifies involvement from public authorities- including, namely, the Banque de France. In partnership with both the Autorité de Contrôle Prudentiel et de Résolution (ACPR- French Prudential Supervision Authority) and the AMF, the Banque de France ought to be a “caring educator, but an attentive regulator”, as it is “imperative that financial literacy and Regulation should be taken forward jointly, as to allow for new technologies to develop, which would be understood by all and for the benefit of all”.
Three roundtables followed. The first roundtable aimed at assessing financial literacy trends and their impact on the financial behaviour of consumers and investors in Europe. The second session focused on the opportunities opened up by new technologies (upon which Fintechs, e.g., crowdfunding platforms, data aggregators and automated financial advice services are thriving) as regards financial behaviours. Lastly, the third panel discussion, which involved several French (AMF, Institut National de la Consommation- INC, French National Institute for Consumer Affairs) and European (European Commission) Regulators, draw conclusions from the first two roundtables and discussed on the issues that an increasingly digitalised financial education raises for Regulatory authorities.
Since this conference raises many crucial questions for Regulation, it is important to recall what has been said in the panel discussion on the role of Regulator with regards to financial education (I.) before sharing some thoughts on this matter of particular interest (II.).
June 22, 2016
It is sometimes argued that the competitive freedom will destroy the "old regulated world", platforms being the perfect example of this fresh wind, the invention of the adjective "disruptive" which could express a "novelty" before which it is only suitable to bow.
It would be therefore necessary to smile or even laugh, what would be a "rearguard battle" when the Conseil Constitutionnel (French Constitutional Council) in a decision of 22 May 2014 had limited the expansion of Uber, protecting the correspondingly monopoly holders of a municipal taxi license.
But in the US, cities adopt regulations. So on the next city council of the city of Chicago, will be proposed the vote of an order to compel the rideshare drivers.
In 2014, the French Constitutional Council justified its decision by referring to "the public order of parking", which the municipality is mistress... The justification given here is to protect the occupant.
Indeed all rideshare drivers will be obliged provide proof that they are subject to health checks, especially on drugs and provide criminel check also.
This is justified because Regulation of an activity implies control of those who exercise it and equal competitors can justify that for the same activity some are removed, especialy in view of the protection of the person transported.
The third new requirement is of a different nature: the driver must prove that it is not in debt to the municipality. Why not, since the infrastructure of the city allows them to exercise the economic activity in question. This is another underlying objective, which lies rather in the idea of an exchange between the city and the one who transports people, the beneficiary of infrastructure should not be otherwise debtor that it enjoys public infrastructure.
The latter provision shows that the "contract" is increasingly not between the carrier and transported - via the virtual platform - but between the very concrete public space and one that circulates and do not live there.
June 21, 2016
June 20, 2016
Little is known about how to ‘regulate the Internet’…
Outline solutions, however, do seem to have to be found in ex-post mechanisms since Regulation (broadly speaking) understand ex-ante and ex-post mechanisms as a continuum, and since Regulators increasingly concentrate ex-post mechanisms in their hands as an effective way to ensure execution of the ex-ante prescriptions they themselves elaborated.
Ex-ante mechanisms aim at making algorithms more ‘loyal’.
As long as we hope for devices to be trustworthy and to be held accountable for their ‘loyalty’, we give merits to the idea that we probably should “take liability seriously”.
The legal dispute is clear.
The applicant based its claim to hold the companies liable on the grounds that they let terrorist groups use their networks: “The suit claims the companies “knowingly permitted” the Islamic State group, referred to in the complaint as “ISIS”, to recruit members, raise money and spread “extremist propaganda” via their social-media services”.
Conversely, the defendants unanimously claimed that they had actively implemented ‘policies’ against extremist material, and that they were working with law enforcement entities to improve regulations on the matter. Self-regulation and ethics versus common liability law.
The companies also pointed out the fact that they were not publishers, hence they could not face liability for the material users post on their networks. This is not, however, the issue at stake: the complaint concerns the use of the network not as a mere way to broadcast messages, but as a way to recruit murderers, provide them with convenient tools to communicate and to prepare criminal operations—allegations for which law does not exempt social media companies from liability.
These allegations are worth being ‘taken seriously’, should the law be unclear on whether the companies could be charged indeed, and should the total exemption from liability of such companies pleading for their ‘neutrality’ be the exception rather than the norm.
The question of principle is thus as follows: is exemption from liability of those who hold the ‘digital space’ together really the norm?
If so, their exemption from liability needs to be extended to a scenario that had not been covered by the law yet. If not, then common liability law is the rightful legal basis to assess whether the companies can be found liable or not—provided that a direct causal link between the unlawful act and an actual harm suffered by the applicant can be demonstrated.
The legal dispute is clear.
June 16, 2016
Professor Hervé Causse released a book of over 800 pages: Droit bancaire et financier (Banking and Financial Law).
Typically, there are "Banking Law" on one side and "Financial Law" on the other, each giving rise to separate books, Banking Law having long since detached from the Commercial Law and do having never really left Civil Law, Financial Law being more subject recently of books.
Typically, there are the "Banking Law" on one side and the "Financial Law" on the other, each giving rise to separate books, banking, having long since detached from the Commercial Law and do having never really left the Civil Law, financial law being more subject recently of books.
In the books of "Banking Law", we find the contracts, transactions (credit), mechanisms (like money), institutions (such as the National Central Bank) and sometimes specific repressive rules.
In the books of "financial law", first of all, we meet financial market, financial transactions (like all securities transactions or takeovers bids), the economy is much more present, the US Law being at home because of extraterritoriality as either model, repressive rules slipping everywhere, to the heart of what appears to be today a branch of law.
The important work of Hervé Causse goes further and corresponds to reality: it merges the Banking and Financial Law.
He does it because his work is based on the life of the sector, that is to say the professionals. In fact, professionals work in banks. Then he describes those who admit and control their activities, that is to say the authorities of supervision and regulation. He goes on to describe to the reader the instruments, financial prowess that the bankers invent.
Thus sucked by financial reality, what is left of the civil commitment of Banking Law? To take just one example, when the author discusses the concept of "banking service" from that of "financial service", he finds the uncertainty of this notions. The Banking Law is thus trying to forget the Civil Code, the “deposition” techniques being one example.
Thanks to the book of Hervé Causse, the reader understands that the rules now being written by those designing financial regulation, these rules must find their bones in the financial regulatory system.