Eighty-six WTO Members are engaged in the ongoing Joint Statement Initiative negotiations on e-commerce. See WTO, Joint Initiative on E-Commerce, https://www.wto.org/english/tratop_e/ecom_e/joint_statement_e.htm (“As of January 2021, there are 86 WTO members participating in these discussions, accounting for over 90 per cent of global trade. As is the case for all the joint initiatives, participation in the e-commerce JI is open to all WTO members. The initiative is jointly co-convened by Ambassador George Mina (Australia), Ambassador YAMAZAKI Kazuyuki (Japan) and Ambassador Tan Hung Seng (Singapore).”). Among the 86 Members who are participating in the negotiations are China, Russia, Indonesia and Turkey as well as major developed countries from Europe, the U.S., Japan, Korea, Canada, Australia, and New Zealand. Not included in the list as of January last year were India and Vietnam. The lack of meaningful rules on e-commerce is a reflection of the challenges the WTO negotiating function has faced in moving forward with multilateral rules.
Reports from the WTO have been that the plurilateral negotiations on e-commerce have made good progress through the end of 2021. See WTO news release, E-commerce co-convenors welcome substantial progress in negotiations, 14 December 2021, https://www.wto.org/english/news_e/news21_e/ecom_14dec21_e.htm; WTO Joint Statement Initiative on E-commerce, Statement by Ministers of Australia, Japan and Singapore, December 2021, https://www.wto.org/english/news_e/news21_e/ji_ecom_minister_statement_e.pdf. The Joint Statement is copied below.
“The COVID-19 pandemic has highlighted the digital economy’s importance, accelerated the digital
transformation and heightened the need for global rules governing digital trade. As Co-convenors of the
Joint Statement Initiative on Electronic Commerce, we are committed to responding to this challenge. This
initiative will update the WTO rulebook in an area of critical importance to the global economy.
“We recognise the importance of the digital economy in post-COVID-19 economic recovery. The digital
economy offers enormous opportunities for developing Members and least-developed country (LDC)
Members, including by lowering the costs for businesses, particularly MSMEs, to access and participate in
global markets. WTO rules and commitments on digital trade can help unlock these opportunities.
“In this context, we will continue to drive negotiations towards a high standard and commercially meaningful outcome building on existing WTO agreements and frameworks. We will continue to promote inclusiveness and encourage the participation of as many WTO Members as possible in the negotiations, which were launched in our January 2019 Ministerial statement.
“We welcome the substantial progress made to date in the negotiations. We have achieved good
convergence in negotiating groups on eight articles – online consumer protection; electronic signatures and authentication; unsolicited commercial electronic messages; open government data; electronic contracts; transparency1; paperless trading; and open internet access. The outcomes already achieved in these areas will deliver important benefits including boosting consumer confidence and supporting businesses trading online.
“In addition, we have seen the consolidation of text proposals in other areas, including on customs duties on electronic transmissions, cross-border data flows, data localisation, source code, electronic transactions frameworks, cybersecurity, and electronic invoicing, as well as advanced discussions on market access. We will intensify negotiations in these areas from early 2022. We note that provisions that enable and promote the flow of data are key to high standard and commercially meaningful outcome.
“Participants in the initiative support the continuation of the multilateral e-commerce moratorium in
fostering certainty and predictability for businesses. The co-convenors consider it crucial that the initiative
makes permanent among participants the practice of not imposing customs duties on electronic
transmissions.
“”In light of the strong progress that has been achieved to date, the co-convenors will arrange the JSI work programme to secure convergence on the majority of issues by the end of 2022. We will identify
opportunities throughout 2022 for Ministers to provide guidance on key issues in the negotiations.
We look forward to working with all participating Members as we intensify the negotiations and work
towards a successful conclusion.
“The Hon Dan Tehan MP, Minister for Trade, Tourism and Investment, Australia
“H.E. Mr HAYASHI Yoshimasa, Minister for Foreign Affairs, Japan
“H.E. Mr HAGIUDA Koichi, Minister of Economy, Trade and Industry, Japan
“H.E. Mr Gan Kim Yong, Minister for Trade and Industry, Singapore
“____
“1 Subject to the final scope of provisions and architecture”
Absent from the topics being discussed (based on the joint statement) are rules around censorship, although some topics can indirectly affect censorship actions (localisation and free flow of data).
Censorship is a major problem for digital trade and service providers, a fact made clear by a recent study from the U.S. International Trade Commission in response to a request from the U.S. Senate Finance Committee. See U.S. International Trade Commission, Foreign Censorship, Part 1: Policies and Practices Affecting U.S. Businesses, Inv. No. 332-585, Publ. 5244 (December 2021), https://www.usitc.gov/publications/332/pub5244.pdf. It is hard to understand how the U.S., EU countries and others can sign off on an e-commerce agreement that doesn’t address the enormous harmful trade effects from censorship.
Part of the Executive Summary of the USITC report (pages 7-13) is copied below and identifies the importance of addressing censorship practices. The countries focused on in the report are China, the Russian Federation, India, Indonesia, Turkey and Vietnam. However, as recognized in the report, censorship is practiced by many more WTO Members.
“Executive Summary
“This report identifies and describes various foreign government censorship policies and practices,
including examples that U.S. businesses consider impediments to trade and investment. It is the first of
two reports requested by the U.S. Senate Committee on Finance (Committee) in its letter to the U.S.
International Trade Commission (Commission) dated April 7, 2021. The Committee stated that censorship
and its impact on the flow of information and services are critical issues for the digital economy and
requested that this first report include detailed information on the following:
“1. Identification and descriptions of various foreign censorship practices, in particular any
examples that U.S. businesses consider to impede trade or investment in key foreign markets.
The description should include to the extent practicable:
“a. the evolution of censorship policies and practices over the past five years in key
foreign markets;
“b. any elements that entail extraterritorial censorship; and
:c. the roles of governmental and nongovernmental actors in implementation and
enforcement of the practices.
“In response to the Committee’s request, this report identifies and describes censorship and censorship enabling policies and practices and the evolution of these policies and practices over the past five years in
six key foreign markets: China (including Hong Kong), Russia, Turkey, Vietnam, India, and Indonesia. For
these key markets, the report also describes elements that entail extraterritorial censorship and the roles
of governmental and nongovernmental actors in implementation and enforcement of censorship policies
and practices.
“In preparing this report, the Commission relied on information provided by a review of relevant
literature, a public hearing, written submissions, interviews with representatives from industry,
academia, the U.S. government, and nongovernmental organizations (NGOs), and publicly available data.
The Commission held a public hearing on July 1, 2021, and participants included representatives of
academic institutions, NGOs, and trade associations. The Commission also received written submissions
for that hearing from a similar cross section of interested parties.
“Defining Censorship
“Censorship can be defined in various ways. For the purposes of this investigation, based on the request
letter from the Committee to the Commission dated January 4, 2021, censorship is defined as the
prohibition or suppression of speech or other forms of communication. This report addresses foreign
government censorship policies and practices, including laws, regulations, and other measures that either
directly target the suppression of speech or may be used to enable or facilitate its suppression. For
purposes of this report, we refer to these measures generally as “censorship-related policies and
practices” or simply “policies and practices.” This investigation focuses on foreign government
censorship-related policies and practices that impede trade and investment by U.S. businesses in key
markets.1 Industries commonly subject to censorship include digital and non-digital media (such as
newspapers, journals, and magazines); producers and distributors of audiovisual content (such as movies
and online video, television, books, and music); and social media and internet search providers, as well as
computer services more generally. The broad trend toward online publication and communication in the
global media and audiovisual services sectors and the heavy reliance on digital distribution for the crossborder provision of news, information, and audiovisual content imply that foreign censorship of the flow of information over digital platforms is having a significant impact on the digital economy. Given this and consistent with the Committee’s request, this report focuses on censorship in the online environment.
“This report in chapter 1 briefly describes how international human rights law has sought to distinguish
between measures that are and are not censorship and whether an instance of censorship may represent
a legitimate exception to freedom of expression. For example, international human rights law considers
such factors as whether a law provides clear direction and is not vague or ambiguous. However, it is
beyond the scope of this report to determine whether a given law may be appropriate or inappropriate
under international human rights law or other legal frameworks.
“Key Markets Where Foreign Censorship Affects U.S. Businesses
“In response to the Committee’s request for information about foreign censorship policies and practices in key markets, the Commission identified six markets: China, Russia, Turkey, Vietnam, India, and Indonesia.
“These six key markets were selected because they meet two broad criteria. First, governments in these
markets have introduced a wide range of censorship policies and practices, in particular with respect to
digital content, that involve restrictions on firms, including U.S. businesses. Second, for the digital and
media services most likely affected by censorship, demand in each of these markets is large enough to
represent a significant market opportunity for U.S. firms. In identifying key markets, the Commission
considered a range of potential foreign censorship policies and practices, noting that these may affect
U.S. businesses either by restricting their existing access or limiting new access to a foreign market.
“While the Commission relied on a variety of sources to inform its identification of key markets, an
important starting point was information from Freedom House, a well-known human rights advocacy
NGO, and its annual Freedom on the Net reports, which provide internet freedom scores related to
obstacles to access, limits on content, and violations of internet user rights, as well as data on
governments’ use of nine ‘key internet controls’ in regulating online platforms, content, and users. To
assist in identifying the key markets with relevant censorship policies and practices, the Commission also
reviewed data on the incidence of internet shutdowns, government requests for moderation of content,
legal guarantees of freedom of expression, and the degree of freedom afforded the press in various
countries around the world. To identify markets where demand is large enough to represent a significant
market opportunity for U.S. businesses, the Commission looked at indicators of demand for digital media
and audiovisual content. These included demographic indicators of consumer demand such as population
and gross domestic product (GDP) per capita, as well as indicators of the size of a market’s digital
economy, including the percentage of the population with access to the internet and the United Nations
Conference on Trade and Development Readiness for Frontier Technologies Index, which assesses
countries’ rate of adoption of important internet technologies.
“Overview of Censorship-Related Policies and Practices
“To get a full picture of foreign government censorship regimes in the key markets, it is useful to
understand the ‘who,’ ‘what,’ and ‘how’ of these policies and practices, as well as their evolution, and
the concepts of extraterritoriality and self-censorship. Many different governmental agencies and actors
have a role in censorship-related policies and practices in the key markets—the ‘who’ of censorship.
Also, governments in the key markets often require the cooperation of nongovernmental actors, such as
U.S. internet companies, to carry out censorship, given the growing importance of the internet for
communication and speech.
“Governments in the key markets censor a wide variety of content—the ‘what’ of censorship. This
content includes political, social, and national security-related topics as well as internet tools that can be
used to circumvent censorship (such as virtual private networks). For example, based on an empirical
analysis conducted by researchers at Harvard University’s Berkman Klein Center for Internet & Society, 26
of 45 countries engaged in state-sponsored filtering of internet content through technical means in
2015–17 and before.2 In particular, all of the key markets engaged in “pervasive” or “substantial” filtering
of political content as well as other topics (figure ES.1).
“Governments in the key markets operationalize censorship—the “how” of censorship—through policies
and practices that can be broadly grouped into two categories: those that directly target speech for
suppression and those that can in some circumstances operate to enable government censorship.
“Government policies and practices in the first category include laws that prohibit particular categories of
speech, as well as the premarket review of audiovisual and other creative works by censors. They also
include, in the online environment, government policies and practices that shut down the internet, block
entire websites, filter access to particular content on sites, or make it more difficult to access websites
(e.g., throttling).
“By contrast, censorship-enabling policies and practices facilitate governments’ ability to suppress speech.
Such measures may include, for example, internet intermediary rules, data localization or local presence
requirements, and foreign investment and market access restrictions. However, whether such measures
should be considered censorship enabling depends on context and the end to which such measures are
used. As detailed in chapters 3 and 4, in the key markets various measures work together, or may work
together, to facilitate government censorship. For example, broad definitions of prohibited content are
often combined with short deadlines for internet companies to identify and takedown prohibited content
and substantial penalties for noncompliance. Or, for example, internet intermediaries are required to
keep data and personnel in the jurisdiction, which can make it easier for governments to ensure
compliance with content prohibitions. In addition, whether a policy or practice should be considered
direct censorship or censorship enabling can be difficult to determine. This is particularly the case in the
key markets where, for example, the same law may combine direct elements (such as banning specific
categories of content) with censorship-enabling elements (such as data localization and local presence
requirements). Table ES.1 provides examples of different types of censorship-related policies and
practices (both direct censorship and censorship enabling) in the key markets. It also highlights some of
the industries particularly affected by these policies and practices. (See chapters 3 and 4 for details of the
examples listed in table ES.1.
“The evolution of censorship policies and practices in the past five years in the key markets has largely
been driven by the growing importance of the internet. U.S. internet companies report ever-growing
numbers of government requests for the takedown of online content. Moreover, governments are using
multiple levers—from data and personnel localization requirements to threats of retaliation—to pressure
compliance with censorship policies. Technological developments, such as the growing reliance on
artificial intelligence by governments and internet companies to identify and suppress large quantities of
online content, also present substantial challenges.
“Foreign governments’ censorship policies and practices may be augmented by extraterritoriality and self-censorship. Extraterritorial censorship occurs when governments seek to suppress speech outside of
their borders. In some cases, a law or policy will expressly state that its prohibition on certain content
applies to companies or persons outside the jurisdiction. A recent example of this would be the Hong
Kong National Security Law, which criminalizes broad categories of offenses (including speech in favor of
Hong Kong independence) and states that it applies regardless of where the crime is committed or who
commits it. In other cases, which arise most notably in China, economic coercion is used to advance
censorship goals even when the targeted speech is legal in the jurisdiction where it occurred. A well- known example involves the Houston Rockets of the National Basketball Association (NBA), whose
general manager posted images on Twitter supportive of Hong Kong independence. The Chinese
government responded by, among other actions, stopping the broadcast of NBA games on Chinese state-owned television stations for more than a year.
“Self-censorship involves censoring or suppressing one’s own speech to avoid offending government
censors or to facilitate market access. It is reportedly present in all of the key markets. Moreover, self-censorship can also occur extraterritorially; for example, movie studios reportedly have removed images
from the master version of films, rather than just the China-specific version, that they believe may offend
the Chinese government. Another example is Bloomberg reportedly not publishing a follow-up story on
the wealth of Chinese officials in order to protect its financial markets terminal business in China.
Additionally, in Turkey, almost two-thirds of Turkish citizens responding to a survey in 2018 reported that
the fear of being jailed for posting political views or opinions on the internet contributed to self-censorship in the country.”
Conclusion
Developing multilateral rules at the WTO or plurilaterally through the Joint Statement Initiative to address e-commerce is of great importance to global trade and prosperity. Failure to come to grips with rules on censorship would greatly reduce the utility of an agreement and permit those who engage in widespread censorship to deprive trading partners of the benefits of an e-commerce agreement. And this is just a reflection of challenges on the trade front, ignoring human rights and other international concerns.