Taiwan’s Participatory Plans for Platform Governance

Platform regulation is not limited to Europe or the United States. Although much debate currently focuses on the latest news from Brussels, California, or Washington, other important regulatory ideas emerge elsewhere. One particularly consequential idea can be found in Taiwan. Simply put, Taiwan wants to, tacitly, democratize platform governance. Concretely, Taiwan wanted to establish a dedicated body that would facilitate public–private collaboration and enable ongoing citizen involvement in platform governance. Currently, the entire bill has been suspended due to controversies regarding other parts of the proposed bill. Nonetheless, policy-makers and researchers continue debating the crucial ideas presented here. Importantly, the coming months allow for broader and, hopefully, globalized debate as a political push to formally revive the proposal is expected after the Presidential election in early 2024. Further, the proposed Taiwanese model to advance and institutionalize user participation in platform governance offers globally important insights as the regime currently considered to be the global trailblazer – the EU Digital Services Act – has not (yet) designed a solid mechanism for citizen participation in platform rule-making.

The blogpost progresses in four steps. First, we briefly recap the currently dominating regulatory models for platform governance. Second, we explain in more detail Taiwan’s highly controversial draft for a ‘Digital Intermediary Services Act’ (the ‘DISA’). Then, we move to the two core points. These are, third, how the proposed act seeks to facilitate user participation and, fourth, how that participation might improve platform governance, especially platform rulemaking.

The global regimes of platform regulation

Currently there are several competing platform governance models, reflecting different perspectives on “regulation”: (1) State regulation, that is, top-down, which is the most traditional image of regulation; (2) Self-regulation, wherein the private sector (platforms) regulates itself; and, finally (3) Co-regulation, which also proliferated in recent years, wherein the state and platforms work together, typically with the state establishing the legal framework and the private sector setting up its own code of conducts and industry standards. The distinctions between those approaches are, of course, analytical and many practical examples feature aspects of regulation, self-regulation, and co-regulation.

It is worth noting that while much of the literature in this field takes only government and industry as the subjects of cooperation, in the context of the EU, co-regulation has a broader definition. In the EU, co-regulation refers to a “mechanism whereby a[n] [EU] legislative act entrusts the attainment of the objectives defined by the legislative authority to parties which are recognized in the field (such as economic operators, the social partners, non-governmental organizations, or associations).” Thus, the EU includes institutionalized civil society actors like NGOs into the potential stakeholders for co-regulatory measures. However, while this concept of a “multi-stakeholder approach” is being promoted (and has seemed attractive to many who are actively engaged in thinking about solutions to platform governance), civil society participation still rarely plays a significant role in many debates about platform governance in Europe and the United States.

In this context, debates about the above mentioned Taiwanese DISA provide ample fruit for thought for global discussions on platform governance.

The controversies surrounding Taiwan’s suspended DISA 2022

The DISA was proposed because Taiwan, similar to other democracies, faces various problems surrounding online platforms: disinformation, hate speech, polarization, and filter bubbles, to name a few. In particular, Taiwan is at the front line of democracy when it comes to the dissemination of disinformation from abroad. Taiwan’s National Communication Commission (NCC) proposed the bill in question in June 2022, with the goal of creating a free, secure, and trusted online environment. The bill aimed to co-opt platforms as gatekeepers and to introduce greater accountability, especially via transparency-focused mechanisms like more explanatory obligations, including explanations of algorithms. So far, so good.

However, parts of the DISA caused controversies and were strongly criticized by opposition parties, platform operators, and the public. One of the biggest sources of controversy was the fact that the DISA gives the relevant government authorities the power to file for an “information restriction order”, which would be then granted by a court. In case of emergency, there is also an “emergency information restriction order” designed to require courts to adjudicate removal orders within 48 hours. In essence, the idea reminds us of arrest warrants: the executive wants to make an arrest, a court grants the warrant. However, if danger is imminent, said court procedures are usually faster and may even become merely ceremonial. Therefore, many Taiwanese opposition politicians and society actors dismissed such emergency restrictions as dangerously reminiscent of state censorship and an excessive restriction on free speech. Facing significant criticism and pressure, the NCC eventually announced in September 2022 that the DISA would be suspended.¹⁾

DISA 2022’s Co-regulation design: jewel in a failed bill?

Nevertheless, the failed DISA 2022 still offers something worth digging deeper into. In its legislative description, the NCC highlighted the fact that DISA draws on the spirit of the EU Digital Services Act (DSA), but also emphasized two main differences: the first was the emergency restrictions we just discussed. The second crucial aspect, however, was to establish a body dedicated solely to achieve co-regulation through public participation.

In fact, the DISA designed two main mechanisms for including civil society in co-regulation: a consulting mechanism (Articles 37 and 38) and a dedicated body (Articles 39 to 45) responsible for promoting platform self-regulation.

Referring to the EU DSA and the EU Audiovisual Media Services Directive, the Taiwanese DISA stipulated that the competent authorities should encourage online platforms to establish self-regulatory codes of conduct and – crucially – to set up or join a collaborative self-regulatory mechanism. Further, the DISA stipulated that the self-regulatory codes should include: (1) self-regulatory standards and procedures for content of advertisements; (2) restrictions on the content of display advertisements; and (3) the encouragement of quality production and the maintenance of pluralistic opinions in providing news services. The DISA stipulated that the standards and procedures in the first and second items shall be feasible and proportionate, set according to the scale of operation and service type, and not subject to prior restrictions such as uploading filters. Such provisions, more or less, mirror the EU approach, most prominently spelled out in the DSA.

Yet, in one respect the Taiwanese proposal could be read as even more ambitious than the DSA. The DISA also introduced a consulting requirement for participation in the ongoing implementation process, requiring operators to include multi-stakeholder input in their formulation of self-regulatory codes of conduct and the collaborative self-regulatory mechanism. In plain language, those ominous ‘multi-stakeholders’ would be user-representative groups, civic groups, representatives of government agencies, interest groups, experts, and academics. However, on a cautionary note, these provisions were not intended to carry punitive legal effects when breached and do not specify how the process should incorporate stakeholder input.

What really makes Taiwan’s proposed DISA different from the EU DSA, however, is the dedicated body designed to serve as a communicative forum for the public sector, industry, and civil society vis-à-vis the platforms. According to Article 39 of the DISA and its legislative description, this body is a forum for public–private collaboration chaperoning platforms’ conduct and self-regulatory efforts. The body would be a consortium set up by the competent authorities. Its financial independence would be guaranteed by a maintenance fund.

It is worth emphasizing the mission of this body. Its most important role is setting out the principles for self-regulation, including protecting users’ rights. The body itself is a forum for communication, with government, industry, and citizen representatives. Those actors shall work together to develop a reference code of conduct for the industry to follow. The draft described it is also as an “intermediary channel,” providing the main channel of communication between industry and government, with the participation representatives of civil society. Accordingly, the (potential) Taiwanese approach to platform governance acknowledges, enables and institutionalizes citizen participation at least in contextual rule-making for online platforms.

To achieve the mission, DISA has established a board of directors within the body, whose membership will include representatives of relevant government agencies; academics and experts in digital communication; professionals in the fields of law, finance, and technology; representatives recommended by public associations related to digital intermediary services; and representatives of civic groups. The board has up to fifteen members, each serving a three-year term, leading the body’s operation. In addition, there is an audit mechanism in place. The number and origins of its members, as well as their terms of office, are designed to include diverse actors beyond the companies themselves and government agencies in the governance of online platforms in Taiwan.

What can we expect from co-regulation with civil participation?

The DISA combines all three ideal types of platform regulation: state regulation, self-regulation, and co-regulation. Self-regulation is a principle that is encouraged by the bill, with co-regulation designed in such a way as to support and complement self-regulation. We argue that a civil society- and participation-focused co-regulation model should be considered for further development in upcoming bills in Taiwan and beyond. That is for three reasons:

First, if we recognize that reclaiming user “autonomy” is a principle that must be valued in platform governance. Civic engagement can help increase user autonomy. When citizen participation in the decision-making process of platform governance is expanded and institutionalized, it expands each individual’s ability to engage in decisions that affect them.

Second, when industries not only self-regulate but also incorporate different actors such as experts or civil-society groups in the decision-making process, the resulting regulatory scheme is likely to be more inclusive and more responsive to the realities and interests of the people who use online platforms. For instance, it ensures the formation of codes of conduct to include a broader range of perspectives, including an awareness of risk and a pluralistic understanding of threats to rights and democracy. Such a regulatory design can also contribute to the efficiency and effectiveness of governance by avoiding further problems with regulation that is not in line with the actual needs of the community.

Third, citizen engagement can balance the discretionary power of platforms in forming governance rules and managing risks. Furthermore, by ensuring civil-society participation, mechanisms for overseeing platforms’ compliance (such as auditors) can be more independent and less susceptible to capture by the tech companies.

Conclusion: A broader co-regulation approach as a valuable tool for platform governance

The Taiwanese government has placed considerable emphasis on its digital-democracy policy in recent years, combining digital technology and citizen participation in an attempt to build a more robust democracy. However, such an attempt has mainly been led by administrative measures, and it still needs to be strengthened at the legal level. For example, while civic technology²⁾ has been used in COVID-19 pandemic-control policies and been (partly) appreciated by Taiwanese society and international media. However, said executive-focused measures’ ambiguous legal basis raised accountability concerns. The enhancement of civic participation in governance as provided for by the DISA marked an attempt at institutionalizing the role of civil society in the decision-making process of technology governance. This article argues that this broader co-regulation approach offers promising ideas to operationalize democratic procedures and mechanisms in the digital age.

However, as said participation-focused body is currently only part of a shelved proposal, more theoretical and practical inquiry is needed. The necessity, independence and impartiality of said ‘participation bodies’ are also questioned and discussed. Further questions how citizen representatives should be selected, or how to provide a stable and effective channel of expression in rule-making for a broad range of citizens outside the dedicated body, requires ongoing consideration. We hope that this article contributes to further international dialogue on platform governance and the role of each and everyone of us in governing our digital future.