Reminder: the open Internet is like an English pub, imperfect but egalitarian and common carriage
Chapter 9 of the book: British public houses are – as we saw in the common carriage discussion in Chapter 2 – granted special rights and given special duties, primarily that to accommodate all-comers who so request. How does the Internet currently resemble a pub? It has its share of gaming and gambling, of queuing and noise, of public lounge and saloon, of the snug (in certain areas), of spam, of video, of music, of piracy (those smuggled CDs), and of course many people of a religious persuasion are convinced it’s a den of vice – it certainly is a place to meet romantically (or otherwise). It has its private privileged alternatives – the members’ club, the nightclub with its VIP room, the other more private spaces with their reserved tables and guest lists. It is related to the coffee houses which provided the first insurance (Lloyds) and stock market speculation in London. It is a place for all people and all seasons. It is also the place for debate and conflict, even violence and police response. More libel is committed in an evening’s ‘character assassination’ in a local pub than in a year of a newspaper, hence the popularity of the widest viewed English language soap opera, ‘Coronation Street’ and its ubiquitous gossiping in the ‘Rovers Return’ pub. The pub is monitored in several ways: first the police license its hours and services; second, police make (somewhat) random visits to check on activities; third, publicans in the United Kingdom often install video cameras to film the entrance. Furthermore, popular pubs have security guards on busy evenings. You might say that the surveillance is as methodical here as on the Internet. We accept these measures of surveillance – though both cameras and security guards (who are now licensed by a regulator to ensure they are fit and proper persons) as well as some licensing authority decisions continue to grate.
Pubs, like ISPs and Internet content providers, have complex economic value chains which constantly threaten the independence of the local publichouse. Parliament has continually intervened in the past twenty years to ensure that the ideal of the public house, the common carrier, as a public space, is maintained with at least some defence against the tyranny of the economics of scale and scope that tend towards the concentration of pubs with brewers in vertically integrated national or even multinational conglomerates. The idea that pubs are ‘free houses’ unconnected to each other and selling any beer or other service they wish is a romantic but false idea, and many pubs are parts of chains tied in one way or another to each other, or vertically integrated with beer suppliers. However, rules prevent over-monopolization of this market, and untied pubs and guest beers predominate since the abuses of competition were recognized and acted upon in the early 1990s.Radical regulatory action saved pubs: theMonopolies and Mergers Commission (MMC) investigated the market.Its report found a complex monopoly existed in favour of brewers who owned tied houses or who had tying agreements with free houses in return for loans (brewer loans) at favourable interest rates. MMC recommended barring any one brewing company owning more than 2,000 licensed pubs. Government followed this advice: theBeer Ordersmodified the recommendations of the MMC report. The Office of Fair Trading in 2000 concluded that there seemed to be a reasonable amount of competition nationally, even if some regional and local concentration existed, and government followed its advice and revoked most of the Beer Orders.In 2009, Parliament once again investigated pubs,and after nearly a decade of deregulation their findings were different. Parliament urged self-regulation by pub chains to be taken more seriously:
Since the British Beer & Pub Association code of practice was updated in 1997 the industry has changed and we suggest that this code of practice should be revised … if the industry does not show signs of accepting and complying with an adequate voluntary code then the Government should not hesitate to impose a statutory code on it.
They recommended urgent government action to the industry, not relying on the previous light mixture of regulation and self-regulation. Pubs are by no means a common agora and debating house paradise lost, but the mix of law enforcement, licensing and pro-competitive changes has restored some tenuous vitality and independence to the trade.
I raise the pub issue not only because of certain similarities of economics and speech freedoms associated with both the Internet and pubs historically, but also to illustrate the specific, sustained and careful consideration which Parliament has given to maintaining some openness in the industry. If it is willing to devote such time and energy to pubs on behalf of one part of its electorate, can it not also find resources to devote to fully exploring net neutrality and the Internet?