The next generation and trust in the internet: Best practices for addressing cross-border legal challenges

Event report

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Mr Paul Fehlinger (Deputy Executive Director, Internet & Jurisdiction Policy Network) started by highlighting that there is a cross-border element in most digital trade-related issues, such as data localisation and privacy regulation. He explained the goals and three pillars of the work developed by the Internet and Jurisdiction project: data, content, and domains. He went on to mention some statistics taken from the Internet and Jurisdiction Global Status Report 2019: 95% of stakeholders say that cross-border legal challenges will increase in the next years, and 80% believe there is still not enough coherence to address these challenges.

Ms Chrystiane Roy (First Secretary, Digital Policy and Cybersecurity, Permanent Mission of Canada to the UN in Geneva and the WTO) mentioned that the report of the UN High Level Panel on Digital Cooperation also concluded that there is not enough co-ordination on digital issues at the international level. According to her, the problems of insufficient co-ordination are exacerbated because policy makers rush into top down regulatory actions. Canada has a highly connected youth, therefore it is hard to imagine that they will have less trust in the digital environment in the future. Nevertheless, like previous generations, they are not fully aware of the cross-border and cross-jurisdiction elements of their online transactions, until a problem arises. The Center for Internet Governance and Innovation (CIGI), the Internet Society, and the UN Conference on Trade and Development (UNCTAD) annually publish the CIGI-Ipsos Global Survey on Internet Security and Trust, which provides insight into the views of Internet users on a wide range of topics – from online privacy, social media, and fake news – to blockchain, cryptocurrencies, and the dark web. The survey shows that, over the years, the level of trust on the Internet has gone down by a few points. The main reason for this is related to cybercrime. In the second place comes the eroding trust in social media and platforms. There is no mass departure from these digital platforms yet, but we may see a move in the direction of caution. Users may open accounts across a fewer number of platforms and may conduct less online transactions in the future.

Ms Neha Mishra (Researcher, Global Economic Law Network and Doctoral Candidate, University of Melbourne) evaluated that the parameters used to assess youth’s trust need to be refined. Young people grow up with technology. Even if there is a trust deficit, they are not looking for offline solutions, they simply switch to what they consider to be a more trustworthy online solution. Young people currently face trade-offs between, for example, having a seamless and smooth online experience, and protecting their data and their privacy. They are fond of efficient closed systems where they have seamless services, for which they are willing to exchange some of their privacy. In order to strike a balance between openness, privacy, and security, the law is not enough. We need soft law and flexible mechanisms.

Mr Nicholas Bramble (Trade Policy Counsel, Google) mentioned that Internet usage among the youth in developing countries is much higher than among adults. For them, access to the Internet means education, social connection, and leisure. Trust needs to be analysed in all these various activities. For example, there is growing awareness among the youth about fake news and misinformation on social media, and this erodes trust. Governments perceive trust from cross-border lenses, but that is not necessarily shared among the youth, they do not make this distinction.

Mr Lee Tuthill (Counsellor, Division of Trade in Services and Investment, WTO) highlighted the importance of Internet hygiene and educating the youth. There are different levels of awareness among young people, and this needs to be taken into account when we assess their trust on the Internet.

Questions and comments from the audience revolved around the following points: a) jurisdiction is no longer very important – platforms have become a new type of jurisdiction; b) users are more concerned with the ethos of vendors and platforms than with governments; c) the difference between considering young people as individuals and as a group that can engender a collective response; d) the impact that a potential end to the moratorium on customs duties on electronic transmissions could have on companies and consumers; and e) the lack of transparency and the non-multistakeholder nature of discussions on digital issues taking place in e-commerce negotiations at the WTO. Moreover, Fehlinger asked the speakers to evaluate how legal challenges could be addressed, and how to create the legal interoperability necessary for trade to continue growing across-borders.

Roy shared examples of how concrete cases involving Canadian companies have brought to light jurisdiction issues, because of the extraterritorial effects of rulings on the removal of IP-infringing content.

Mishra highlighted that digital trade issues cut across many areas of knowledge (technical, legal etc.) and expertise in all these areas needs to be mobilised to define problems and find solutions.

Bramble pondered that complete harmonisation is not the solution, but at the same time, it is important to prevent legal fragmentation and uncertainty. It is important, therefore, to find common standards. This is being achieved with the GDPR and other model-regulations emerging around the world.

Tuthill mentioned that if customs duties are imposed on apps or software used by Asian small and medium-sized enterprises (SMEs) to operate their businesses, it would be a considerable burden for them, and this burden would be passed on to the consumers.

Brumble added that it is difficult to ascertain the origin of a video that is the result of a collaboration among people in different countries, therefore rules of origin may not be a practical instrument. If countries want to increase their revenue, taxation is a better instrument than customs duties.

Roy recognised that there is an inherent contradiction in defending the multistakeholder model and, at the same time, supporting the discussion of digital issues at the WTO. Canada is trying to address this by involving its stakeholders nationally to participate in elaborating governmental positions on digital issues.

Tuthill highlighted that several operational documents produced by the Internet and Jurisdiction project provide good guidelines to the different roles and responsibilities of actors, and to the procedures that should be adopted for a smooth interaction between governments and companies when there is a cross-border element.