TWN Info Service on WTO and Trade Issues (Feb20/11)
24 February 2020
Third World Network

US wants website owners shielded over content in e-com pluri-accord
Published in SUNS #9059 dated 3 February 2020 

Geneva, 31 Jan (D. Ravi Kanth) -- The United States wants an e-commerce pluri-accord on digital trade at the World Trade Organisation to shield website owners from lawsuits and state prosecution for user-generated content, participants in the plurilateral talks under the Joint Statement Initiative (JSI) on e-commerce told the SUNS.

As participants of the JSI group on e-commerce prepare for another round of meetings beginning on 11 February, the US has apparently listed an item for negotiations titled, "interactive computer services (limiting non-IP liability for suppliers and users and infringement of persons' rights)".

This item seeks to internationalise the US legislative statute known as Section 230 of the Communications Decency Act of 1996 that continues to generate huge controversy in the US, a participant argued.

Section 230 says: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This particular US statute, according to Harvard academic Shoshana Zuboff, has enabled "firms such as Facebook, Google, and Twitter" not to remove the "most egregious content from their landscapes."

"And it helps to explain why lawyers for tech companies litigate ferociously to prevent even a sliver of erosion in Section 230," Zuboff wrote in her book "The Age of Surveillance Capitalism - The Fight for the Future at the New Frontier of Power."

Recently, lawmakers in the US Congress severely criticized Facebook for its refusal to remove false and egregious political advertisements.

"A statute once crafted to nurture an important new technological milieu is now the legal bulwark that protects asymmetric wealth, knowledge, and power of a rogue capitalism," Zuboff argued in her book.

The other items of the JSI negotiations to be held on 11-14 February include "facilitating electronic transactions," "non-discrimination and liability", "consumer protection," "transparency, domestic regulation, and cooperation," and "telecommunications."

These five items will be discussed by five different focus groups. For example, Focus Group A will discuss issues such as "electronic transaction frameworks, E-authentication and e-signatures, electronic contracts, electronic invoicing, and facilitation of e-payments" as part of "facilitating electronic transactions."

In Focus Group B on "Non-discrimination and liability", JSI participants will discuss issues such as "non- discriminatory treatment of digital products, [and] interactive computer services (limiting non-IP liability for suppliers and users and infringement of persons' rights)."

As part of "consumer protection" in the Focus Group C, the JSI participants will discuss "online consumer protection, [and] unsolicited commercial electronic messages/spam".

In the Focus Group D on "Transparency, Domestic Regulation, and Cooperation," the JSI participants will discuss "publication of laws and regulations, electronic availability of trade-related information, administration of measures related to e-commerce, and cooperation between stakeholders, agencies, and international organizations."

And in Focus Group E on "Telecommunications," the European Union's proposal for "updating the telecommunication reference paper" will come up for consideration.

At the recently-held breakfast meeting of trade ministers of the JSI group in Davos on 24 January, the US has signalled unambiguously that it is discussing with other like-minded members in the JSI group about "free-rider concerns", said a JSI participant, who asked not to be quoted.

The US has also called for a permanent moratorium for not imposing customs duties on electronic transmissions, indicating that it will not agree to any temporary moratorium as demanded by Indonesia at the last JSI group meeting in November last year, said another JSI participant, who asked not to be quoted.

[It is not clear how a pluri-accord, as sought by the US, can impose on non-members of the accord a permanent moratorium against imposing customs duties on electronic transmissions. SUNS]

The US has called for a "gold standard agreement in the proposed plurilateral agreement on digital trade at the World Trade Organization," ruling out any possibility for an early harvest of low-hanging fruits such as an agreement on e-signatures and electronic contracts among others at the WTO's 12th ministerial conference in Nur Sultan, Kazakhstan, in June.

At the breakfast meeting of the JSI trade ministers, the deputy USTR and envoy to the WTO, Ambassador Dennis Shea, complained that some countries are reluctant to negotiate a high-standard agreement in electronic commerce, according to a JSI participant.

"But we want a gold standard agreement," said Ambassador Shea, emphasizing that it must allow firms to trade data across countries without any prohibitions or restrictions, including elimination of data-localization norms and mandatory requirements for sharing the source code, as well as customs duties, the JSI participant said.

Surprisingly, the US has not included all the contents of its intervention made at the JSI trade ministerial meeting in Davos in the statement issued on the US mission website on 27 January, the JSI participant said.

In the statement issued on its website on 27 January, the US trade envoy Ambassador Shea had merely said "of course, within the JSI on digital trade, we aim higher. When we kicked off this initiative two years ago, it was an effort to move beyond the gridlock of multilateral discussions, and allow more ambitious members to make more ambitious commitments."

In sharp contrast to the US position on "free-riders", several countries, including the European Union and China want an open-ended plurilateral outcome on e-commerce like the Information Technology Agreement (ITA).

The US has called for adopting a consolidated negotiating text on e-commerce at the WTO's 12th ministerial conference in Nur Sultan, several JSI participants said.

The WTO director-general Roberto Azevedo, who participated in the breakfast meeting of the JSI group on e-commerce, praised the participants for making considerable progress in the negotiations.

Japan called for enhanced rules on free data flows, including protection of privacy provisions, and digital trade based on the Osaka track. Japan emphasized on "openness, trust, and facilitation".

Indonesia, which recently joined the JSI group on e-commerce, called for "policy space" for pursuing digital trade.

The US suggestion for an Annex IV type of agreement on digital trade is not consistent with what JSI members had agreed at the time of launching the negotiations in Buenos Aires in December 2017, said several JSI participants, who asked not to be quoted.

It was agreed then that the JSI deal on e-commerce would be modelled on the lines of the Information Technology Agreement (ITA) so that non-participants are open to avail all the benefits, the participants said. +