Ethics Codes: Shifting to a Bottom-Up Approach

By Stefano Rodotà
President, EU Agency for Fundamental Rights
President of the International University College of Turin (IUC)

"Shifting from a top-down to a bottom-up approach: from merely approving a draft to building up shared rules"

Today’s information society looks like a battlefield, where hard law and soft law, ethics and law are continuously at variance. Multiple stakeholders, conflicting interests, and the irreducibility to the domestic dimension make it difficult – at times impossible – to regulate with the help of conventional tools such as domestic laws or international conventions. These factual difficulties are compounded by conceptual analysis, whereby self-regulation is said to be preferable over rules imposed from the outside because such rules are allegedly regarded as authoritarian – at the very least, paternalistic. In fact, the Internet is supposedly in need of no binding rules; indeed, rules might affect the intrinsically libertarian nature of the Internet. Thus, soft law is regarded from different quarters as the most suitable tool to regulate the ever-changing, mobile, diffuse, or downright elusive information society.

Starting with these considerations, the focus has been shifting stepwise towards tools that are termed in different ways – codes of conduct, codes of ethics, codes of good practice, netiquette, blotiquette, and so on. Though retaining the word “code” – which is a tribute paid to the legal dimension – these instruments are actually putting emphasis on ethics. The underlying reasons are obvious. Ethics is a highly evocative word; it points to the existence of values and hints to the responsibilities vested in the individual stakeholders. Ethics is therefore considered a necessary tool to remedy the real or alleged difficulties encountered by law. Codes of ethics have been spawned in the most diverse sectors and feature, at times, considerable ambiguities. Indeed, some of them are ultimately little more than proclamations devoid of concrete repercussions and are only used to convey a reassuring image of the organisations that have drafted them.

Still, the nature of codes of conduct / codes of ethics has also undergone some changes. Influential institutions, both national and international – including Unesco – have adopted codes that take on moral authority and can work as reference models for public and private entities. Special significance should be attached, for instance, to article 27 of European directive 95/46 on the protection of personal data. This article envisages specific mechanisms and procedures to draft and adopt codes of conduct at both a community and domestic level, with the contribution of national data protection authorities as well as the Working Party set up under article 29 of the Directive. The latter bodies are in charge of checking that the draft codes are compliant with both the directive and national implementing legislation; after their adoption, the European Commission “may ensure appropriate publicity” for them. There is little doubt that such codes do not merely mirror the self-regulation of a given industry; in fact, they are the end-product of the collaboration between public and private entities – so much so that in some legal systems (e.g. in Italy) the adoption procedure may lead the codes of conduct to ultimately become part of the sources of law. This means that soft law can become hard law, that there is a shift from ethics to law – as per the title of a bio-ethics report prepared by the French Conseil d’Etat – and national authorities are additionally in charge of “ensuring” not only their dissemination, but also “compliance” with their provisions (as per section 12 of Italy’s personal data protection Act).

This evolution has grounding in multifarious reasons – but all of them are basically related to the circumstance that it is increasingly necessary, in today’s information society, to safeguard the fundamental rights of individuals. To that end, setting out rules is increasingly perceived as indispensable: although such rules cannot be as binding as laws, they prevent safeguards from being committed exclusively to self-regulation, or the action and responsibility of entities that might also be ready to restrict or violate those rights. This is why the new generation codes of conduct arise out of the need to meet those requirements – as has been recognised in an especially clear-cut manner by article 8 of the EU’s Charter of Fundamental Rights, where data protection is enshrined as a fundamental right of the individual. Thus, one is faced ultimately with the issue of how to build up a constitutional dimension for the protection of fundamental rights in the information society. In this perspective, codes of conduct cannot play a central role, also because in too many cases they express mainly corporate interests.

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Source: Stefano Rodotà, Ethics and Human Rights in the Information Society, UNESCO, 13-14 September 2007, Strasbourg.

The author is President of the EU Agency for Fundamental Rights and President of the International University College of Turin (IUC). Newly partnered with CIME, the IUC features scholars such as Duncan Kennedy (Harvard), Guido Calabresi (Yale), Gustavo Zagrebelsky (Former Italian Chief Justice), and Ugo Mattei (Hastings, Turin) as Academic Coordinator. Nobel Laureate Amartya Sen sits in the IUC Advisory Board.

“Global Issues” are the basis of IUC, where different disciplines meet to approach professional topics through an internationally diverse faculty and student body. With this perspective, among other activities, IUC is setting up an independent Working Group (WG) to produce a position paper on Preliminary Issues in Legal Standards for the Global Financial Markets to be presented at the G8 meeting in July 2009. The IUC Proposals for discussion will be based on a general global approach in search of a radically new paradigm of globalization and social relations among the citizens of the world, based on communication, long-term trust and respect.

CIME will collaborate with the IUC to cover pivotal subjects related to the "media ethics" domain; moreover, internships will be offered to IUC students.

For further information about IUC, we invite you to visit the website at www.iuctorino.it