Digital Regulation and Questions of Legitimacy

Abstract

ABSTRACT Governments across the world have introduced or are considering new digital regulation to address a range of policy issues, from long‐standing concerns about illegal and harmful content online to more recent debates about the risks and benefits of generative AI. As new regimes of digital regulation take shape, questions about their legitimacy are likely to become ever more central. Focusing on the model of independent regulation favoured in liberal democracies, this article notes that the general problems of legitimacy regulators faces may be aggravated in the case of digital regulation, since the factors believed to make regulation effective (technical expertise, agility, adaptability and collaborative relations with industry) widen the gap between regulators and democratic publics and increase the likelihood of ‘capture’ by powerful stakeholders and ideologies. Rejecting both technocratic and populist‐decisionist responses to these legitimation problems, the article draws instead on work that rethinks regulation along more deliberative democratic lines. To improve the legitimacy of digital regulation, the focus should be on increasing the quality of justification between regulators and their publics, ensuring not just that those involved in regulation justify their decisions to those they affect and are supposed to serve, but that members of the public are empowered to reflect on, test and contribute to shaping these justifications.

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