Spontaneous Deregulation Tests Regulatory Gaps on Digital Platforms

By Austin Okere

There is a perfect storm brewing between Regulators and Technology Platforms. Regulators should ordinarily be one of the most critical enablers of a society.

Austin Okere

They, however, tend to be either a source of support or a headwind against progress. The regulator should not constrict the pursuit of opportunity nor act in a manner to entrench protectionism.

While Nigeria has become one of the world’s fastest-growing technology markets, attracting investments of over $216m in the first quarter of 2021 alone, there is a palpable apprehension among technology start-ups, after a series of regulatory headwinds from different government bodies.

These include the Central bank of Nigeria’s ban on cryptocurrency trading and the Security and Exchanges Commission’s clampdown on technology platforms for purchasing shares in foreign companies outside the Commission’s regulatory purview and registration.

In August 2021, the Central Bank of Nigeria froze the bank accounts of six fintech platforms for 180 days, saying it was investigating “illegal foreign exchange trading”.

“The party’s over: China clamps down on its tech billionaires” was the screaming headline in the Guardian of August 21, 2021. In the article, Vincent Ni reported that Tencent had announced fresh restrictions on the number of time children can spend playing its online games shortly after state media labelled gaming “spiritual opium”.

The major news last October was Alibaba’s fintech spinoff Ant Group suspending its IPO shortly before it went public after high-flying founder Jack Ma expressed dissent against regulators.

In July, the country’s largest ride-hailing company, Didi, became a regulatory target less than 48 hours after it floated in New York. It was ordered to withdraw from app stores and banned from accepting new users pending a review of security risks and data management.

The news wiped $22bn from its market value. Individuals have also been affected.

Last July, Colin Huang, founder of e-commerce platform Pinduoduo, stepped down as chief executive. He later relinquished his chairmanship. In May, Zhang Yiming, boss of TikTok’s parent company, Bytedance, announced his resignation to focus on “reading and daydreaming”.

Further afield in America, the story is not much different. “The Trump-Twitter fight ropes in the rest of Silicon Valley” was the headline on Politico.com on Sunday, May 30, 2020. President Donald Trump tweeted about mail-in voting, alleging without evidence that the effort would lead to voter fraud.

For the first time, Twitter marked the tweet with a small notice that read “Get the facts about mail-in ballots,” which linked to facts-based reporting on the subject. Twitter’s fact-check led Trump to issue an executive order targeting social media companies.

In early June 2021, Nigerian President Muhammadu Buhari announced the indefinite suspension of Twitter after the platform deleted one of his tweets and temporarily suspended his account.

The relationship between platforms and regulation has been thorny right from the start and can at best, be described as a keg of gunpowder waiting to be triggered. Has the time come for the trigger to be pulled?

I wrote this article five years ago in June 2016, and it still captures the essence of this fractious relationship.

I facilitated a seminar for the Lagos Judiciary at the Lagos Business School in May 2016, with the theme Digital Economy and Legal Regulation. The aim of the program was to share insights on the emerging Digital Economy with their Lordships and draw attention to the imperative for regulatory evolution in the face of the pervasiveness of Online Platforms of the kind operated by technology giants such as Facebook, Google, Uber and Airbnb.

There is hardly an area of economic and social interaction these days that is left untouched by these Platforms in some shape or form.

Regulatory Gaps

To fill the regulatory gaps in the digital economy, these behemoths have resorted to what could be referred to as spontaneous deregulation. I first encountered this term in an article by Benjamin Edelman and Damien Geradin and has arisen as a result of digital disrupters ignoring laws and regulations that appear to preclude their business model, which is typically based on providing platforms for crowdsourcing and giving rise to the sharing economy.

Believing in the efficacy of their utility model and its appeal to pent-up global demand, these disrupters seem to see many rules and regulations as belonging to the past and impractical for today’s innovative clime. They therefore simply ignore them, opting for their own version of self-regulation, usually based on a mutual rating system between service providers and consumers.

It is this skirting of existing regulation that is referred to as spontaneous private deregulation.

These disrupters make the rules for themselves as they go along, because in fairness to them, as their platforms reshape markets, the scope of activity subject to regulation tends to decrease, and various forms of protection disappear.

These companies operate in interstitial areas of the law because they present new and fundamentally different issues that were not foreseen when the governing statutes and regulations were enacted.

The major areas in which these digital czars have riled the establishment are in transportation embodied by UBER, hospitality embodied by AirBnB and FINTECHs, with their foray into cryptocurrencies, particularly Bitcoin and Ethereum.

The need for ‘platform fairness’

Axelle Lemaire, French secretary of state in charge of all things digital, insists that France is open to platform operators, but consumers have to be protected. She is sponsoring a law to be passed by the French Parliament which will create the principle of ‘Platform Fairness’.

Karnataka state in India, where Uber piloted its India service two years ago has directed taxi aggregators such as Uber to stop operations in the state until they secure a licence from the government, triggering sharp reactions from the corporate world.

Getting a licence would mean no more surge pricing, complying with the maximum fares fixed by the government periodically and registering with local transport authorities.

The question is why has it taken the Karnataka government such a long time to wake up to regulatory gaps in her transport sector? And how many other cities are in this quagmire?

The U.S Supreme Court recently ended a decade-long battle over Google’s massive book-scanning project, declining to take up an appeal by authors who claimed the company violated copyright law ‘’on an epic scale’’.

The justices denied certiorari in Authors Guild v. Google, 15-849, leaving in place a ruling last year by the U.S. Court of Appeals for the Second Circuit that said Google’s project was permissible. The appeals court decision invoked the ‘’Fair Use’’ doctrine, which permits some ‘’socially beneficial’’ use of published works such as news reporting or research, that would otherwise constitute copyright infringement.

Airbnb has had its fair share of issues with one of her largest markets, New York.  A major concern is a legal regime within which Airbnb operates; one that is marked by poorly drafted laws that fail to account for challenges presented by the sharing economy.

As explained by Airbnb cofounder Brian Chesky, “There were laws created for businesses, and there were laws for people. What the sharing economy did was create a third category: people as businesses,” to which the application of existing laws is often unclear.

These new business models raise complex questions that have not yet been addressed by either legislatures or courts.

Because the threat of enforcement actions can have a chilling effect on start-ups and their users, state and local government officials should consider how their actions may affect burgeoning businesses. Officials should encourage the sharing economy’s growth through collaborative efforts rather than seek to protect incumbent businesses.

Until more people think they can successfully start businesses and prosper, we will not have enough jobs in the economy

Regulation seems too slow in catching up

The slow pace of regulation evolution seems to strongly suggest that the legal profession itself is ripe for a technology revolution that will optimise the largely manual and laborious process of enacting laws and regulation in the face of the aggressive pace of digital innovation.

I recall the indignation of their Lordships when I cautioned that the learned profession could be more vulnerable than they think when it comes to disruption. Emerging technologies like cognitive computing and other forms of machine learning can help narrow the gap between regulation and innovation.

Green shoots of technology in Law and Regulation

My take expressed to their Lordships after the seminar was that the digital revolution is like a train whose drivers are the entrepreneur disrupters. The passengers are the global customers with pent-up demand for the value and convenience that Platforms provide.

Staying on the right side of the law in a digital world

Naysayers to this phenomenon can stand in front of the train and be crushed, stay on the platform and be left behind, or come on board for a ride into progressive partnerships. Regulators still have much to learn about how to deal with platforms. They have no choice but to get more involved and get the needed expertise. But will they? The jury is still out.

Austin Okere is the Founder of CWG Plc, & Entrepreneur in Residence at CBS, New York. Austin also serves on the Advisory Board of the Global Business School Network.