[governance] US requests China website censoring details

[William Drake]

Hi Sala

This is indeed an interesting development.  During the WSIS and thereafter, WTO staff and other trade people were rather equivocal when some of us argued that since the multilateral trade regimes apply to Internet commerce they constitute a form of global Internet governance.  They didn't want trade policy issues drawn into the IG space, inter alia because like the IPR people involved in WIPO & WTO they preferred to keep these solely within their institutional space.  But over the past couple years a growing number of trade analysts have begun to view FOE restrictions as trade restrictions, and Google & industry groups like the Computer & Communications Industry Association have picked up and pressed the argument.  This might present a little bit of a conundrum for folks who are both proponents of FOE and opponents of the WTO system…

China's restrictions on foreign-based websites & related operations may well be a violation of the GATS if its schedule of commitments doesn't carve them out under the relevant modes of supply like via networks or commercial presence.  China could try to argue that the restrictions are legal under the General Exceptions escape clause that allows measures necessary "to protect public morals or to maintain public order," but that works only if it can be shown that the services pose a genuine and sufficiently serious threat to the fundamental interests of society and the measures are nondiscriminatory and not a disguised restriction on trade in services.  If this goes to a dispute settlement panel, an important legal precedent, potentially backed by the option of trade sanctions, could ensue.  

Whether anyone would want to take the risk of acting on that option, and whether it'd even prove necessary, are other questions.  A couple years ago the  Appellate Body ruled against China in a dispute with the US over the importation of material publications and audiovisual products, finding that China's actions violated its accession agreement, the GATT, and the GATS, and specifically said that China had failed to show its actions were necessary to protect public morals.   I don't recall that this gave rise to sanctions though—I think they undertook some relaxation of restrictions in their distribution system.  Who knows if that could be a precedent…

Bill



On Oct 20, 2011, at 5:36 AM, Salanieta T. Tamanikaiwaimaro wrote:

> Dear All,
> 
> I read with interest the following:
> 
> US requests China website censoring details
> http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10760429
> 
> -- 
> Salanieta Tamanikaiwaimaro aka Sala
> 
> Tweeter: @SalanietaT
> Skype:Salanieta.Tamanikaiwaimaro
> Cell: +679 998 2851
>  
> 
> 
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