Why EU consultations are inherently biased against members of the public

The European Union’s institutional machinery is so complex and hard to fathom for those outside the Brussels bubble, that most people don’t bother trying. That’s a pity, because the grinding of the EU’s great gears often throws out small sparks of illumination. For example, earlier this year, the S&D MEP Childers Nessa used a parliamentary question to ask the European Commission about «Civil society’s views on ancillary rights in response to the public consultation on the role of publishers in the copyright value chain» – the (in)famous Article 11 of the EU proposed copyright directive, also known as the «snippet tax».

As well as supplying a few figures relating to the response to the consultation, in his reply Vice-President Ansip also noted that «Public consultations are for the Commission an essential tool to inform its policy-making. However, the Commission adopts a cautious approach to quantitative data, as responses to consultations are generally not statistically representatives of a target population.»

A «cautious approach to quantitative data» is a polite way of saying that the European Commission doesn’t accord much weight to the fact that thousands of European citizens have expressed their approval or disapproval of a proposal, but simply records it as the view of another organisation, albeit a rather vague and amorphous one.

That’s underlined by a comment in the main «Synopsis report on the results of the public consultation on the role of publishers in the copyright value chain». We read there: «A number of respondents have provided very similar replies to the consultation. The analysis of open questions shows that in a relevant number of cases word-for-word or extremely similar textual answers are repeated in the submissions of different respondents.» This is clearly a reference to the replies submitted through the YouCanFixCopyright Answering Tool set up by Copyright 4 Creativity.

What’s interesting is the implicit criticism of that comment – otherwise, why bother pointing it out? The Commission is saying that people who express their views using someone else’s formulation aren’t worth listening to as much as those who craft some unique statement of their position. It effectively calls for respondents to spend a certain amount of time and energy in expressing their views if they want to be taken seriously.

But who exactly is best placed to produce carefully-crafted explanations of their views, perhaps backed up by independent research? Big companies, of course, because they have the resources and probably even dedicated personnel whose job is to put together just the kind of polished responses to consultations that the Commission appreciates.

Ordinary people, by contrast, are busy with their own jobs and lives, which have nothing to do with replying to Commission questionnaires. Members of the public must find a free moment – perhaps stolen from precious time that would otherwise be spent with family and friends. The reason they adopt pre-existing formulations is not because they are bunch of lazy layabouts who can’t be bothered stringing a few words together independently, but simply because they do not have the temporal luxury to do so.

That fact makes the Commission’s devaluation and implied criticism of responses sent through sites like YouCanFixCopyright profoundly unfair – and profoundly anti-democratic. The very format of the EU consultations is biased in favour of big companies and their marketing departments, and against ordinary people just trying to get by.

As a post on the Copyright for Creativity site pointed out earlier this year, that bias is evident in other ways. For example, the copyright consultation was only made available in three languages: English, French and German. For companies operating in EU countries speaking other tongues, that is unlikely to be much of a barrier, since businesses today generally employ people fluent in one or more of those languages. But for ordinary citizens in those same countries, it is much harder to read the consultation, since it requires reasonable levels of foreign language fluency.

In fact, the linguistic barriers are even greater than that implies. For the consultation, respondents were specifically asked to give their views on the impact of the Spanish copyright law on different stakeholders, as Spain has already introduced neighbouring rights for press publishers in its national legislation. The Commission is quite right that Spain’s experience – completely negative – is a key piece of evidence for the proposed copyright directive revisions.

But the fact that the consultation was not provided in Spanish, means that many of those EU citizens best able to offer comments on the reality of a snippet tax – the ones speaking Spanish – would probably struggle to do so. Companies outside Spain are more likely to have someone capable of reading materials in Spanish, and responding, than average citizens in non-Hispanic countries.

Moreover, the bureaucratic language typically used in consultations makes it hard for non-specialists to understand the questions even in their native language, never mind foreign ones. Again, the presumption is evidently that the consultation will be dealt with by company experts, well-versed in the terminology, and its real-world implications.

Put together, these factors all tilt the consultation’s playing-field heavily towards business, and especially towards larger corporations. And yet the European Commission chooses instead to downplay the numbers of individuals who despite all these obstacles took the time and trouble to respond.

This clear pro-business bias is present in all EU consultations, which privilege unique, well-researched responses over basic ones sent by many people using Web sites set up to help them navigate the complexities of the questions, and provide straightforward, ready-made comments. In fact, the Commission should be applauding and encouraging sites like YouCanFixCopyright that make it easier for EU citizens to reply, not sneering at them; arguably, they are offering a service that the Commission itself should provide.

That general pro-business bias is even more of an issue when it comes to copyright. Members of the public may only be tangentially affected by consultations on the mid-term evaluation of the Nuclear Decommissioning Assistance Programme, or on the detergents regulation in the context of its ex-post evaluation. But everyone who uses the Internet is profoundly impacted by copyright every moment they are online, and often when they are offline too. Changes to the key directive covering this area are, above all, a public policy issue affecting 500 million people, rather than purely the domain of the copyright industry. That means the EU must give more weight to the concerns of the former than the demands of the latter, as is currently the case.