Recent Seminar - Digital Platform Regulation vs Brussels Effect: Learning from the Brazilian example

On 29 January 2025, CLARS co-hosted an exciting seminar with The Digital Law Group, in collaboration with Monash Business School’s Opportunity Tech Lab.

The Speaker was Professor Nicolo Zingales, FVG Law School, Brazil and CLARS member, Professor Chris Marsden acted as Moderator. The topic of the seminar was digital platforms, which have increased the ability of individuals and businesses to reach wide audiences and receive information online.

This has paved the way for new types of relationships and business dynamics, bringing about complex challenges for the governance of online communities.

Alongside the scale and speed of content moderation, a main complicating factor is the orchestrating nature of online platform services - which bring together heterogeneous groups without exercising direct control over their activities, while also holding enormous power and the ability to shape, through architecture and governance choices, the experiences of online communities.

Against this backdrop, the European Union in 2020 introduced the EU Digital Services Package, which includes the Digital Services Act (DSA) and the Digital Markets Act (DMA). These laws created a new regulatory environment where a few key online platforms, which play a significant role in orchestrating value creation, are required to meet a more stringent set of obligations than other players in the online ecosystem.

A crucial component in this regulatory framework is the choice for a system-level and “meta-regulatory” approach: first, these platforms are held accountable for governance choices they make independently from the outcome of individual cases, thus signaling a shift from a tort law to a more public-law framework.
Secondly, while they enjoy a certain amount of discretion to implement open-ended obligations, their choices are regularly scrutinised by regulators and society at large, who may request further adjustments. This approach promotes regulatory learning and equips both platforms and regulators with the flexibility to deal with complex challenges involving dynamic settings and multiple actors whose conduct can often not be predicted.

However, its implementation is resource-intensive and based on a particular socio-economic context, which may not be suitable for all jurisdictions.  As a result, it is not surprising to see governments in several countries (including Australia) have decided to tackle the same challenges following a different version of meta-regulation.

Our discussion illustrated the path being charted by Brazil, where the parliamentary process rejected proposed legislation that bore strong similarities to the European framework, with a new framework in the process of being defined by the Supreme Court, the Ministry of Finance and the competition authority.

Keynote speaker

Prof Nicolo Zingales is Professor of Law at FGV Law School in Rio de Janeiro, where he heads the e-Commerce Research Group. He is an affiliate researcher with the Stanford Center for Internet and Society and the Tilburg Institute for Law, Technology and Society, Tilburg Law and Economics, and a non-governmental advisor for the International Competition Network for the Brazilian Competition Authority, senior fellow of the Inclusive Competition Forum and founder of the BRICS+ Digital Competition Forum. He earned his PhD in International Economic Law from Bocconi University and a Master of laws from the University of Bologna.

Moderator

Prof Chris Marsden is Professor of Artificial Intelligence, Technology and the Law, Director of the Digital Law Group at Monash University, and Associate Director for Global Governance of the Data Futures Institute. He was Co-Director of the Warwick-Monash Alliance Brussels Effect of the AI Act workshops in 2023, and co-director of the Human Futures in the Age of AI Monash-Penn State Alliance conference in April 2024. He was appointed to serve on the ARC College of Experts 2024-26. He also serves as an expert in the International Expert Consortium on the Regulation, Economics, and Computer Science of AI (RECSAI) 2024-5.