There are legitimacy and discriminatory issues relating to overreliance on private standards to regulate new technologies. On the legitimacy plane, we see that standards shift the centralization of regulation from public democratic processes to private ones that are not subject to the rule of law guarantees reviving the discussion on balancing the legitimacy and effectiveness of techno-legal solutions, which only further aggravates this complex panorama. On the discriminatory plane, incentive issues exacerbate discriminatory outcomes over often marginalized communities. Indeed, standardization bodies do not have incentives to involve and focus on minorities and marginal groups because 'unanimity' of the voting means among those sitting at the table, and there are no accountability mechanisms to turn this around. In this letter, we put up some ideas on how to devise an institutional framework such that standardization bodies invest in anticipating and preventing harm to people's fundamental rights.

One of the consequences of the fast development of technology is that public policymakers struggle to develop policies that adequately frame the technology impacts, challenges and opportunities in time. This favours private actors, who develop their own standards, decentralizing the power to regulate. Industrial standards have been developed to govern industrial robot technology and one type of service robots – personal care robots. This chapter explains the complex intertwinement between public and private regulators in the case of robot technology.

We argue that while safety requirements have been set for these types of robots, legal principles and values deeply embedded in the social environment where these are implemented – privacy, dignity, data protection, cognitive safety, autonomy or ethics – have been disregarded, leaving the users’ (fundamental) rights ignored. Moreover, there are currently no safety requirements for other types of robots, including surgical, therapeutic, rehabilitation, educational and sexual; specific requirements for different types of users are missing; and a code of practice for robot developers, even if being discussed, is currently unavailable.

Public policymaking can ensure a broader multi-stakeholder protected scope, but its abstractness often fails to intelligibility and applicability. On the other side, whereas private standards may be much more concrete, most of the time, they are made by voluntary work with no juridical guarantees, normally reflecting industry interests. To give comprehensive protection to robot users without losing technical concreteness, we advocate for a better intertwinement between private standard-setting and public lawmaking approaches.

This chapter explains the distinction between two different modes of regulation, i.e. standard-setting and lawmaking, highlighting their respective features and their reciprocal interrelationships. One of the consequences of the inability to keep up with technology is that industry, and more generally, private actors, usually take the lead and develop their own standards. The problem with such testing regimes is that they are conceived under the idea that new technology may need new testing zones, obviating the fact that machine learning capabilities and more “real” robots may challenge that. Lawmaking does not necessarily relate to “the achievement of the optimum degree of order in a given context,” but rather to the achievement of consensus and agreement among the relevant members of the community on the substantive content of the rules themselves. Setting a clear distinction between soft law and hard law, between standard-setting and lawmaking. This is further shown by their intertwinement and reciprocal cross-references, justified by factual and technical needs.