Brexit, digital entertainment, tech and why I’m voting Remain

It would be against the UK’s interests to vote to leave the European Union: this is my attempt to explain why I believe this and why I will be voting ‘Remain’ on the Brexit referendum on 23rd June 2016.

For those of you who don’t know me: I’m a digital entertainment and tech lawyer with more than a decade of experience working in the UK, continental Europe and Silicon Valley. I advise video games, eSports, digital broadcast and tech businesses from indies and startups to global leaders on UK and EU legal and business matters. I’d like to think I have a pretty fair understanding of the legal and business realities of the UK’s membership of the EU. So, I’m going to focus on legal and policy issues for Brexit, partly because it’s my specialism, but also because there has been relatively little discussion about it and how it would affect the industries I advise. It is not even close to an exhaustive treatise on the topic, it is just my own thoughts a couple of days before the referendum. If you want to hear what the industries themselves think, here’s some links about what tech thinks about Brexit, and what the games industry thinks about Brexit (1, 2) [spoiler: they are all against Brexit]. Here we go…

The UK benefits from EU law and the EU benefits from UK law.

Here’s something scary for you: Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997. Sounds like the uncaring diktat of a faceless European superstate? No. Actually it’s the EU’s ‘distance selling’ rules which give EU consumers the right to return goods that they purchased online but don’t want. Before it came in, British consumers had no clear right to return unwanted games, DVDs or books bought from Amazon, Game and so forth. Recently it was updated to give consumers rights in online games and digital content. These rules form a key part of EU consumer law, which has come to be the most world’s sophisticated consumer protection system, giving practical consumer rights and remedies to ordinary people across the EU.

Some others: the EU’s Equal Treatment Directive required all EU countries to enshrine in law the principle that men and women are equal in the workplace and that no one can be discriminated against at work on the basis of their ethnicity, gender, religious or political views or otherwise.  There are important UK laws on research, data and environmental protection to name just a few which are derived from EU legal standards and which benefit our country.

These are some simple examples to illustrate my first point: since the UK joined the European Economic Community (as it was then) in 1973, European laws, cases and guidance have helped to build our legal and business landscape in all industries, including digital entertainment and tech. For the most part, they are beneficial and sit in the background – but they are part of our everyday lives. They are not all great by any means; sometimes they end up as compromises; sometimes they don’t work as well as they could have. Sometimes that is the EU’s fault and sometimes it is ours (since often each country is responsible for specifically implementing the general principles agreed by all member states on a particular matter). A key strand you will see running through this article is my view that the EU may not be perfect (what is?) but on the whole it does work in this imperfect world.

The UK excels at international business because of its EU membership.

For several years I have had first-hand experience of businesses from the US and increasingly now from Asia choosing to do business in the UK in least partly for the UK’s position as a bridge between the US and EU, between Anglophone common law and European continental law. I practised in Silicon Valley, helping high growth tech companies expand to Europe, where the UK’s role as translator and interpreter of the European legal and business landscape was on many occasions a key factor to bringing those companies to the UK. I could name you at least ten well known internet or video games businesses which use the UK as their bridgehead into the 500m strong EU market and use UK law for their European business because it gives them the best of all worlds, especially the broad compatibility of UK and EU law on a range of matters important to their business. We can do this in part because our laws are both our own and also European at the same time. Clearly that is not the only reason (look also at our stability, location, timezone, competitive financial and tax incentives etc) – but it is a sizeable factor.

We influence the EU for the better.

Legally, EU laws are created through the coordination (and a system of checks and balances) between the EU Parliament, the European Commission, the Council of Ministers and the Court of Justice of the European Union, all of which have British representation. For example, right now the European Commissioner for financial services – one of the UK’s most vital industries – is a Brit, responsible in part for driving the EU’s strategy for the burgeoning fintech industry (whose epicentre is London).

Politically, the UK has serious weight as one of the three leading EU member states (alongside France and Germany) and as the leading voice for free markets and low regulation in the EU. More than that, the UK has influence because it can be more innovative than others. A video games industry example: the UK was the first country in the West to develop specific rules for free to play games, based on EU consumer protection laws, and the rest of the EU has basically followed the sensible and practical British approach (thus averting the potential chaos that more heavy handed or fragmentary regulation could have brought to games). By contrast, there have been occasions where the UK has followed an EU approach to its advantage. The UK used to regulate video game age ratings under its own local BBFC system, but the industry and UK government decided that following the pan-European PEGI system was better for everyone and they made it happen.

The UK can profit from EU developments (if it stays in).

Lastly, there are a number of works at the EU level that could benefit the UK but which equally would benefit a great deal from the British perspective in crafting and developing them. The EU has already become more active over the last few years at building its digital entertainment and tech support infrastructure, especially through making available the grants and loans which other industries have enjoyed for years. Digital entertainment and tech companies in the UK are only just starting to see the benefit this can provide. Looking ahead, there are very ambitious legal plans to build a European ‘Digital Single Market’, breaking down barriers to buying, selling and enjoyment entertainment and tech products and services across the EU. For the UK, as the undisputed creative capital of Europe and a good candidate for tech capital too, there are opportunities here if it can shape these (very early) developments in the right way.

Vote Leave’s legal arguments don’t work.

The Leave arguments focus on legal matters which do not stack up in my experience, or that of many UK lawyers. What follows is my response to some common ones (not all the Vote Leave arguments). I am not going to comment here on specific statistics or ‘facts’ in the popular debate, or on emotive issues like immigration or human rights, which are huge battlegrounds in the Remain vs Leave debate; if you want to know more about that, check out https://fullfact.org/.

Brussels stifles the UK with red tape.

For example, the Vote Leave site says “100% [of British businesses] suffer the burden of EU red tape“. I cannot find any actual examples on the Vote Leave site and I do not think they exist. I advise a range of British games, digital entertainment and tech businesses: on a day to day basis EU rules are very low on their list of things to worry about. I certainly don’t have any great list of do’s and don’ts for my clients dictated by EU legislation (and I’d like to think I am a moderately competent lawyer). Obviously, rules exist and sometimes they surely do present real issues, but I have yet to encounter any clients of mine stifled by this mysterious red tape.

EU laws are passed without our consent.

Going back to Vote Leave (how obliging of them), they say “over half our laws are made by unelected EU bureaucrats in Brussels for whom we never voted”. As I explained above, the UK has a voice and representation, both legally and politically. The “unelected bureacrats” to whom Vote Leave refers are presumably the European Commission, the EU’s civil service which generates proposals for new laws. Leaving aside the fact that our own Civil Service does the same kind of thing, the realities of European politics is that actually the European Parliament and the Council act as a check on Commission proposals. A lot of the time, this is how European legislation works: the Commission (or sometimes the Parliament) propose legislation, it goes out to consultation (including national governments and industries having the chance to present their views), eventually it goes through multiple voting processes and checks, finally it has to be implemented by national governments. So, if anything, in most cases a member state ought to have a number of ways to make its views known if the process is run properly. There can be a legitimate ‘democratic deficit’ argument about the EU, and it does not always work as smoothly as it should, but a simple ‘we have no control’ claim is just not right.

More generally the UK has joined a whole host of international arrangements from the United Nations to the Commonwealth, many of which the UK is a founding member, where the UK can be outvoted and measures passed without its consent. That is in the nature of any cooperation where multiple people or countries make decisions together for the common good, it is not unique to the EU by any means.

The UK cannot pass its own laws.

Not true. In great swathes of our lives, the UK has effective control of its own laws. The UK fought hard to implement a legal principle called ‘Subsidiarity’ into the EU which was intended to require the EU only to pass laws where member states cannot efficiently do so themselves. Above all, for many years there  have been legal arguments (to which I personally subscribe) that Parliament remains ultimately sovereign on all matters in the UK and could, if necessary, ALREADY disregard EU laws (if you are really interested, read about the Factortame series of cases…and reflect on what exciting stuff law students have to read), a principle which by the way has been taken for granted in France and Germany in the past. This gets seriously difficult in constitutional law, but the point is that Vote Leave’s argument is not nearly as simple as it makes out.

The UK can trade with the EU without being subject to its laws.

How? I just don’t see it. The EU has a legal and judicial process which applies to all member states – its rules are not generally disapplied for anyone. In fact the EU goes further and applies these rules to anyone trading with the EU: even the USA and other major powers have got into fights with the EU over the EU’s insistence on applying EU rules to anyone trading with the EU. Right now there is a minor war being waged over the EU’s belief that the US doesn’t respect the privacy rights of EU citizens, for example. I do not see how UK would be so different to the US when it comes to the EU applying EU rules to trade with the EU.

“Taking back control is a careful change…we will negotiate the terms of a new deal before we start any legal process to leave.”

The above is a Vote Leave quote from its site, btw. For the UK to leave the EU would require the rethinking of most if not all of our laws, rules and regulations. Not just those from the EU, but also our place in a wide range of international treaties, conventions and so forth. It would be an immense task, the work of many years, during which I must say – using what lawyerly restraint and understatement remains to me – there would be a considerable period of uncertainty. And that’s just what we get on our side of the table, let alone the rest of the world – where international figures from President Obama to the IMF have lined up to point out how difficult the process will be from their side, too. Some people joke only lawyers would benefit from Brexit – believe me, we don’t want the headache.

Let me add a personal note.

I’ve struggled with whether this article should remain only a professional legal analysis and ultimately I came to the conclusion that I should at this point shed those vestigial shreds of lawyerly restraint and understatement which I mentioned earlier and smash, Hulk-like, into this final piece of my article. This is too important a topic to leave things unsaid. Besides, it is my article anyway :).

This is what I think: I have grown up with the European Union and have friends and clients across it. I have studied how it works since I was 18 and during my career I have lived and breathed its realities from day to day. The EU is not perfect and occasionally it falls below even ‘OK’. But it works, just as our own country works, even if not always as well as we would like. The world needs more cooperation between countries and peoples, not less. It is for these reasons, and a host of other non-legal reasons which I am not writing about today (but you can tweet me if you are interested), that I will vote Remain later this week. As for you, whatever else you may think of the Remain vs Leave debate, I hope that these thoughts have been a little helpful in you deciding what to do.