Trade-Related Aspects of E-Commerce: What to Expect?

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The panel discussed the history of e-commerce and the reasons for e-commerce to be included in WTO negotiations. Panellists also discussed the issues of the free flow of data and data protection in light of existing provisions in bilateral and multilateral agreements such as the Trans-Pacific Partnership (TPP) and the US-Mexico-Canada Agreement (USCMA)/Canada-US-Mexico Agreement (CUSMA). South Africa’s position of not taking part in the WTO e-commerce negotiations was also considered.

Ms Léa Auffret (Senior Trade Policy Officer & Trade Team Leader, European Consumer Organization (BEUC)) explained that the session was organised by the BEUC and Public Citizen to foster constructive conversation about the ongoing e-commerce discussions at WTO.

Mr Christoph Kiener (European Union Chief negotiator for the WTO e-commerce negotiations) stated that EU considers discussing e-commerce within the WTO to be a longstanding strategic priority because this is a new area of trade not yet regulated globally. Thus, it is important that a commercially-meaningful e-commerce regulation be discussed at this multilateral forum.

He noted that in 1998 discussions around regulating e-commerce started but received timid response from countries. At the 11the WTO Ministerial meeting in Buenos Aires (2017) Australia, Japan, and Singapore presented a statement offering to initiate exploratory work on e-commerce discussions within the WTO. Since the Ministerial meeting, the number of countries supporting the exploratory work has increased from 36 to 70 and after the 2019 World Economic Forum’s meeting in Davos, 76 countries shared a joint statement to formally start negotiations. Australia called for written negotiated text proposals to be submitted by 26 April 2019. So far, 20 written submissions have been received and more than 50 issues have been identified. On 13-15 May 2019 the first substantive negotiation phase will take place at the WTO in Geneva. After that, regular meetings will be held in preparation for the 12th WTO Ministerial Conference in Astana, Kazakhstan (2020). He concluded by affirming that the EU is calling for these negotiations to be as inclusive and transparent as possible and will soon share the negotiation mandate and the text proposal on its website.

Dr Burcu Kilic (Director, Digital Rights Program, Public Citizen) highlighted that some of the issues discussed during the WTO negotiations on e-commerce are already included in other multilateral agreements. In particular, she focused on three issues. First, the very first cross-border data flows provision was art. 15.8 of the US-Korea Free Trade Agreement (2007) which, however, is not a binding treaty. The TPP, 2016 has the same provision (art. 14.11) and commits signatory parties to allow cross-border data flows. Art 19.11 of the USCMA/CUSMA, 2018 also reports the same commitment for the parties. Second, in regard to data protection, the TPP postulates in art. 14.8 that each signatory has to introduce a framework for the protection of personal information, however, as footnote 6 reads, it is unclear what threshold for protection should be applied to personal information. The same provision and consideration apply to art. 19.8 of the USCMA/CUSMA. Third, in reference to data localisation, art. 14.14 of the TPP envisages exceptions for the localisation of computer facilities of a covered person (e.g. ‘to achieve a public policy objective’) whereas art. 19.12 of USCMA/CUSMA does not list any exceptions.

Mr Pablo Viollier (Public Policy Analyst, Derechos Digitales) pointed out that equating data to oil is misleading because data is a non-rivalrous good: in the case of data exchanges both the owner and the receiver of data possess it at the same time. He maintained that we should think of data more in environmental terms and push for a ‘sustainable data ecosystem’. A business model that focuses solely on the exploitation of personal data is not sustainable for the economy or for society. He maintained that a human-rights based approach should be the way to promote e-commerce because it would create a more positive legal environment by avoiding clashes between privacy protection and e-commerce development. Moreover, such an approach should be accompanied by discussion on e-commerce and sustainable business models which would incentivise companies to develop a business model in compliance with human rights provisions.

He concluded by focusing on two aspects that are missing from e-commerce discussions: the need to achieve universal access to the Internet (which should consider both the digital divide and fragments of the market which are currently left out) and the need for consumers to be notified when data breaches occur.

Ms Vahini Naidu (Economic Counsellor, South African Permanent Mission to the WTO) explained that South Africa is not participating in the WTO negotiations because the national strategy on data for development is still under discussion, therefore it would be premature to start discussing binding rules at the international level. Discussing e-commerce entails mapping different issues (from human rights, to development to telecoms) that are interconnected. South Africa is discussing how these issues can be addressed in relation to the existing national and regional legal framework. She also specified that talking about e-commerce does not only refer to privacy discussions, rather it mainly concerns the assessment of the value and the ownership of data together with its exploitation. She concluded that the WTO is not the right forum to discuss e-commerce as it is ‘severely lacking a development agenda’ because the discussions are biased towards developed countries.

By Marco Lotti

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