Luciano Floridi (University of Oxford – Oxford Internet Institute) has posted Soft Ethics and the Governance of the Digital (Philosophy & Technology, Forthcoming) on SSRN. Here is the abstract:
What is the relation between the ethics, the law, and the governance of the digital? In this article I articulate and defend what I consider the most reasonable answer.
And from the paper:
[D}igital ethics may be understood now in two ways, as hard and soft ethics. Hard ethics is what we usually have in mind when discussing values, rights, duties and responsibilities—or, more broadly, what is morally right or wrong, and what ought or ought not to be done—in the course of formulating new regulations or challenging existing ones. In short, hard ethics is what makes or shapes the law. Thus, in the best scenario, lobbying in favour of some good legislation or to improve that which already exists can be a case of hard ethics. For example, hard ethics helped to dismantle apartheid in South Africa and supported the approval of legislation in Iceland that requires public and private businesses to prove that they offer equal pay to employees, irrespective of their gender (the gender pay gap continues to be a scandal in most countries).
Soft ethics covers the same normative ground as hard ethics, but it does so by considering what ought and ought not to be done over and above the existing regulation, not against it, or despite its scope, or to change it, or to by-pass it (e.g. in terms of self- regulation). In other words, soft ethics is post-compliance ethics: in this case, “ought implies may”. Now, both hard and soft ethics usually presuppose feasibility or, in more Kantian terms, assume that “ought implies can”, given that an agent has a moral obligation to perform an action only if this is possible in the first place. It follows that soft ethics also assumes a post-feasibility approach.