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A key question in advance of the World Trade Organization (WTO) Ministerial Conference that took place last week in Buenos Aires was whether its full membership would agree to launch new negotiations seeking to create multilateral norms for e-commerce. Since 1998 the WTO has had a work program examining e-commerce issues, but in the past months several members – including Australia, Canada, Chile, Costa Rica, the European Union, Mexico, and others – circulated textual proposals calling for new negotiations or a working group that could end in new negotiations. Others members – among them the African Group and India – preferred to continue under the current work program instead of launching new negotiations.
Without consensus, 71 countries will initiate “exploratory work”
WTO ministers arrived to Buenos Aires with widely opposite views about the need for new e-commerce negotiations, and the ministerial meeting did not bridge their divide. At the WTO all important decisions are taken by consensus of its full 164-country membership, which means that for now there will not be new multilateral e-commerce negotiations in this forum.
Despite this lack of consensus, a group of 71 developing and developed countries including the US, the EU, China, Argentina, and Brazil, announced in a joint statement that they would initiate “exploratory work together toward future WTO negotiations.” Some members suggested that these talks will take place “within the WTO”; but, since the organization lacks a negotiating mandate, this group seems rather equivalent to a “coalition of the willing” that will try to adopt reference points for eventual WTO negotiations.
Coalition-building has been a common practice at the WTO since its inception. Yet, some proponent countries in Buenos Aires framed this initiative as a new path for the WTO: like-minded countries engaging in “sectoral agreements” negotiations without the consensus of all members. What this means for the legal and institutional structure of the WTO, and how this new path will affect power asymmetries at this forum, is yet to be seem.
E-commerce and trade
According to their joint statement, the exploratory work of the 71 countries will address “trade-related aspects of electronic commerce.” “Trade-related” is a loose term, and provides little clarity into what the group will actually discuss. Many issues could fall under that umbrella. Thirty years ago, to make the case for adopting intellectual property standards at the WTO, some members pushed for a strange linkage between norms that grant monopolies and an organization designed to curb protectionism.
In light of this ambiguity, recent trends in regional and bilateral trade agreements provide a good guess about the issues likely to make it into the exploratory work at the WTO. Recent regional and bilateral trade deals have included norms on cross-border data flows, data localization, disclosure of source code, anticircumvention, intermediary liability, and others.
Bad global norms on any of these issues will seriously harm digital rights. Internet freedoms must not be framed as “trade-restrictive.” International norm-setting driven exclusively or primarily by trade principles could undermine legitimate safeguards for consumers and the open nature of the internet. But the dangers of adopting regulations that will affect the internet in a trade forum were mostly downplayed during the WTO meeting in Buenos Aires. Critical internet principles like net neutrality were largely missing in the discussions that argued in favor of multilateral trade negotiations on e-commerce.
However, we do believe it is important that countries work to establish mechanisms that guarantee the free circulation of information: if, for a example, a long adopted moratorium on e-commerce duties expires, WTO members would theoretically have immediately had the right to impose new tariffs on data crossing their borders. In addition, as the creation of the European single market shows, the elimination of trade barriers is not necessarily an enemy of privacy rights: there are EU-wide privacy rights precisely because some privacy advocates leveraged the creation of the European Single Market - one of the most ambitious free trade projects in human history. We think that an e-commerce trade agenda is not necessarily incompatible with internet freedom and consumer rights such as privacy.
The civil society ban is an unacceptable precedent
Public Knowledge is a long-time critic of the lack of transparency and participation of trade negotiations, a practice that has become common in bilateral and regional trade talks. Although the bar is low and the WTO is far from perfect, this is a relatively transparent and participatory trade forum: minutes, working documents, proposals, and decisions are often publicly available; civil society groups are allowed to attend to some of the meetings.
However, the Eleventh Ministerial Conference in Buenos Aires was a significant setback for transparency and participation. The Argentinian government banned more than 60 previously-accredited representatives of civil society from attending the meeting – including digital rights organizations Access Now and Derechos Digitales. The European Union Trade Commissioner Cecilia Malmström, industry representatives, civil society organizations and others expressed opposition to this move, which in some cases was reverted, but nonetheless set a new precedent of lack of transparency and participation at the WTO.
Conclusion: a cautious welcome
At PK, we cautiously welcome the coalition of the willing e-commerce agenda. It is important that countries work to establish mechanisms that guarantee the free circulation of information. At this point, it is not clear whether the e-commerce coalition will conduct its exploratory work with the same transparency and participation that the WTO is used to. Some members of this group have claimed that it will work “within the WTO” and be “open” to other members, but in practice the coalition is not bound to its institutional rules. Furthermore, the group might use secrecy as bait for the countries that are still unwilling to join these talks.
It is unacceptable that civil society groups are barred from negotiations that affect the future of the internet and societies. Given the transcendental importance of e-commerce to the internet and human rights, such conversations should happen in a transparent, multistakeholder process. Consumer protection and data protection authorities should be included in the design and study of any binding e-commerce agreement. As MEP Marietje Schaake rightly says: “Promoting the free flow of data and protecting the right to data protection and privacy actually go hand in hand.”
Image credit: WTO