世界經(jīng)濟(jì)論壇-在線消費(fèi)者保護(hù)和電子商務(wù)的全球治理（英文）

1、Contents TOC o 1-5 h z HYPERLINK l bookmark8 o Current Document Introduction: Why does this matter?4 HYPERLINK l bookmark12 o Current Document Understanding the landscape6 HYPERLINK l bookmark14 o Current Document Regulatory instruments in play8 HYPERLINK l bookmark16 o Current Document Cross-border

2、 solutions: Whafs been done to date11International (soft law*11The WTO option12The regional deal option15 HYPERLINK l bookmark2 o Current Document Next steps17 HYPERLINK l bookmark4 o Current Document Annex 1: Online consumer protection regulatory examples18 HYPERLINK l bookmark6 o Current Document

3、Acknowledgements21 HYPERLINK l bookmark10 o Current Document Endnotes22an opportunity to build a soft consensus on common approaches - a method used in other policy fields, too, such as the International Competition Networks approach to competition law and authorities.Soft law may be a step in the r

4、ight direction. It has the potential to achieve functional-equivalent regulatory convergence on consumer protection principles. A non-binding approach may also allow for the description of detailed principles, subsequently implemented by consumer protection agencies, knit together as a community of

5、advocates for consumer protection. A downside is that soft law may have limited effects in addressing consumer distrust in poor regulatory environments already in existence -particularly those where domestic reform is unlikely.The WTO optionMany trade experts argue that WTO rules make no distinction

6、 between the different means (whether physical or online) through which goods and services are traded.41 Various WTO dispute settlement reports have confirmed that the market-access commitments and non-discrimination obligations found in the General Agreement on Trade in Services (GATS) extend to th

7、e electronic supply of services.42Nonetheless, WTO members initiated a work programme as far back as September 1998 to better understand the implications of WTO rules on emerging online modes of cross-border trade.43 Discussions in the work programme over the past two decades, however, have been of

8、limited relevance to online consumer protection. For the most part, the focus has been on trade-liberalizing measures (e.g. market-access commitments, non-discrimination etc.) and related classification issues, rather than on regulatory tools to build consumer trust in e-commerce. To some extent, th

9、is is not surprising given the nature of the WTO - an organization that promotes international trade liberalization rather than setting standards or regulatory harmonization on trade-related matters.The increasing prominence of digital trade led to developments in two parallel discussion tracks at t

10、he organizations 11th Ministerial Conference (MC11) in December 2017. At the multilateral level, the work programme was rolled over with a focus on existing WTO rules, while 70 WTO members adopted a Joint Statement on Electronic Commerce, agreeing to undertake exploratory work towards future negotia

11、tions.44Within this “plurilateral” process, several WTO members put forward proposals that touched on online consumer protection, as summarized in Table 1. In January 2019, 76 WTO members, responsible for over 90% of global trade, confirmed their intention to begin negotiations on the trade-related

12、aspects of e-commerce.Table 2: WTO proposals on online consumer protection (2018)WTO member (s)Online consumer protectionAgency cooperationPersonal information protectionThe Separate Customs Territory of Taiwan, Penghu, Kinmen and MatsuRussianFederationProtect online consumers, rights at a level no

13、less than provided in offline commerce; recognize important online consumer rights in e-commerce; ensure security of cross-border e-commerce; encourage the private sector to engage in good business practice; define measures that can counter cross-border violations of consumer rights and safety; crea

14、te a digital platform to share information on unsafe online goods and servicesSet basic principles for cooperation and information exchange on cross-border trade for competent authorities and develop unified approaches for cooperation and mutual aid to prevent dishonest activity in e-commerceWTO mem

15、bers to commit to not adopting or applying measures that hamper the cross-border transmission of information, unless under exceptionalcircumstances; WTO members to agree to a set of principles or guidelines that indicate when exceptions to information transmission may be legitimate and how to apply

16、such regulatory measures on a transparent and non-discriminatory basisStandards for personal data transmission in the supply of payment services; conditions for personal data treatment, including storage, confidentiality and securityEuropean Union Adopt or maintain measures that contribute to consum

17、er trust; adopt or maintain measures that protect consumers against unsolicited commercial electronic messages (i.e, “spam”) and agree to a set of broad technology-neutral obligations including consent, prevention, identification and recourseRecognize the importance of cooperation between national c

18、onsumer protection agencies and other relevant bodiesNew ZealandWTO members commit to minimum legal frameworks to prevent the use of misleading or deceptive practices online; put in places measures to address spamWTO members commit to establishing or maintaining a legal framework to protect personal

19、 information of electronic commerce usersArgentina,Negotiate to address regulatoryAffirm WTO members5 right toColombia & Costa Ricaissuesregulate to ensure the protection of individual privacy, security and confidentiality of informationBrazilWTO members to protect end users against unsolicited dire

20、ct marketing communications; ensure direct marketing, where allowed, is clearly identifiable as such; common understanding on return periods; a list of objectives WTO members should pursue or maintain to enhance consumer trust, such as measures that prohibit charging consumers for services not reque

21、sted or for a period in time not authorizedWTO members recognize WTO members to adopt or maintainthe importance of cooperation between respective national consumer protection agencies or other relevant bodiesa legal framework that provides for the protection of persona data of individuals, taking in

22、to account the principles and guidelines of relevant international bodies; encourage the development of mechanisms to promote compatibility between different privacy regimes; outline a set of criteria where the international transfer of data is allowable; WTO members to ensure online platforms are r

23、esponsible for personal data stored and managedSingaporeAdopt measures/laws to protect online consumers from fraudulent and deceptive commercial activities; adopt and maintain measures to address spamPromote international cooperation between consumer protection agenciesAdapt or maintain measures tha

24、t offer protection for personal informationSource: Authors1 analysis of proposals made in the e - commerce joint statement discussions in 2018.Although the WTO proposals to date converge on the importance of consumer-related issues, they are vague about the substantive content of the “set of princip

25、les” or minimum legal frameworks that ought to be encouraged or required by WTO law. However, the early stages of discussions may offer a partial explanation.Non-governmental organizations, such as Consumers International, have also outlined a “checklist of elements critical for any international e-

26、commerce deal. Under the banner of Informed choice, consumers should have a clear and accurate presentation of information, transparency on subscription service payments and clarity on the location of retailers. For increased access and inclusion, the needs of vulnerable and disabled consumers shoul

27、d be considered, with responsible marketing warnings and age verification checks also emphasized. Effective protection should be given in the manner of other forms of commerce, with consumers able to explicitly agree to a purchase and receive a receipt. Consumers should have access to fair and effec

28、tive dispute resolutions if something goes wrong. Product safety11 should be pursued with clear warnings and information on safe use; data protection should be of a high standard in both substantive and procedural national laws. International cooperation should be encouraged, including through the U

29、N, ICPEN, OECD and regional bodies, and any e-commerce negotiating process should be transparent and should involve multistakeholder dialogue.45Questions remain as to whether the WTO is the most appropriate forum for adopting such international e-commerce agreements and for regulating online consume

30、r protections. On the one hand, the WTO may seem better placed to tackle this issue than other international or regional governance structures: It is the backbone for international trade governance; it benefits from a quasi-universal membership; it benefits from theflexibility of a plurilateral appr

31、oach to rule-making when needed;and, in theory at least, it has a relatively sophisticated and effective dispute settlement system - notwithstanding the ongoing Appellate Body crisis.46 In policy terms, divergence in domestic consumer laws could be a non-tariff barrier to cross-border online transac

32、tions, and hence qualify as a trade-related concern for the WTO.On the other hand, the WTO presently has limited experience in promoting regulatory convergence on trade-related matters. Onlythe Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has unquestionably mo

33、ved in the direction of positive integration, by prescribing the minimum standards of intellectual property protection in both substantive and procedural terms-building on preexisting World Intellectual Property Organization (WIPO) conventions. WTO rules on technical barriers to trade and on sanitar

34、y and phytosanitary measures encourage harmonization of relevant international standards developed by other competent international organizations47or the mutual recognition of domestic regulations.48These provisions are qualified, however, and make it the choice of each WTO member to regulate (or no

35、t) at the level of protection it deems appropriate.Some progress towards standard-setting was arguably made, however, through the UWTO Telecommunications Reference Paper on Regulatory Principles”. Adopted in 1996, the document set out common principles for a regulatory framework that were considered

36、 important as the telecommunications sector transitioned from dominance by state-owned monopolies to one where competition is prevalent.49The aim was to minimize divergence by stipulating the vital elements for an effective regulatory framework on telecommunications services. Some 82 members have in

37、tegrated the reference paper into their respective GATS Schedules of Commitments to make its principles legally binding.WTO members engaging in plurilateral e-commerce negotiations could consider this approach, allowing them to identify the most effective regulatory practices for online consumer pro

38、tection. A common set of detailed minimum international standards for implementation by the participating countries could be outlined. Doing so could help boost consumer confidence in e-commerce in parallel with easing the costs that hold back small businesses selling online in the first place - enc

39、ouraging a virtuous circle between demand and supply.The approach does have some disadvantages. First, as with the Telecommunications Reference Paper, only a limited number of WTO members might commit to be bound by the minimum standards in online consumer protection. Governments that are already di

40、gital-sawy may be the only ones to participate in the process, making the regulatory improvements brought by WTO bindings relatively limited. Second, a reference paper approach could set a high bar, particularly for developing countries that may not yet have the resources to adopt and implement onli

41、ne consumer protection laws. WTO negotiations could remedythis by offering technical assistance to support lawmaking and implementation. Third, drafting of minimum online consumer protection standards cannot provide a definitive solution to the problem of regulatory friction and the subsequent consu

42、mer mistrust in e-commerce, since it will not lead to harmonization. It would still be possible for some WTO members to impose higher online consumer protection standards, therefore allowing some degree of regulatory diversity to remain.Additional questions exist in regard to enforcement. The WTO di

43、spute-settlement system is state-to-state.50 If a WTO member violated its regulatory commitment to online consumer protection, affected individuals in another country would need to rely on his or her home state to bring a challenge.The regional deal optionAn increasing number of regional or preferen

44、tial trade agreements (PTAs) cover cross-border e-commerce.51 According to research conducted by the WTO Secretariat, of the 275 PT As that were in force and notified to the WTO as of May 2017, 75 contain provisions specific to e-commerce. Of these, 65% include online consumer protection provisions,

45、52 about 58% contain provisions on personal information protection and 28% cover unsolicited commercial electronic messages.53In most cases, the PTA5s dispute-settlement mechanism would apply to the e-commerce chapter, with only ten agreements excluding some or all relevant provisions.54 However, as

46、 in the case of the WTO, these are traditional state-to-state dispute-settlement mechanisms, with only three PT As providing for alternative mechanisms to resolve cross-border e-commerce disputes.55The legal strength and enforceability of these provisions varies significantly. On the stronger side o

47、f the spectrum are provisions that are clearly mandatory and enforceable. An example is the PT A provisions dealing with the adoption ofpersonal information protection measures,56 with about half requiring each party to adopt or maintain personal information protection laws and often including a ref

48、erence to international standards and the criteria of the relevant international bodies (albeit with qualified language: should take into account55).57At the weaker end of the spectrum are provisions framed in language seeking the most effective methodologies that may be difficult to enforce in prac

49、tice. Online consumer protection measures,58 in most cases, fall short of imposing a mandatory obligation.59 The same applies to PT As calling for e-consumer protection that is at least equivalent to that provided to consumers in other forms of commerce.60 Similarly, relatively weak legal terms are

50、used for the prevention of unsolicited commercial electronic messages,61 with few agreements incorporating a binding commitment.62In some respects, PT As present prime laboratories for developing new rules among groups of “l(fā)ike-minded” countries on trade-related issues, particularly on topics that h

51、ave stalled atthe WTO.63 However, consumer-related provisions in PTAsarguably have had limited legal significance to date, despite being an important step forward from a policy or political perspective. To date, many PT As simply include a provision recognizing the importance of adopting and maintai

52、ning transparent and effective consumer protection measures for e-commerce. Very few PT As mandate the adoption or maintenance of measures to protect consumers in growing digital trade - other than to some extent for personal data protection. Further, even in areas where substantive progress has bee

53、n or could be made, the PT A option is inherently fragmented and there is no guarantee of regulatory convergence across agreements.64One option for consideration in this respect are the e-commerce consumer protection principles included in recent mega-trade agreements negotiated between regional eco

54、nomic blocs. Forexample, the Comprehensive and Progressive Partnership forTrans-Pacific Partnership (CPTPP) e-commerce chapter mandates that parties adopt or maintain consumer protection laws that address fraud or harmful online commercial activities (Article 14.7). Parties must also adopt measures

55、for spam that empower recipients to stop reception, require consent or otherwise minimize this form of communication (Article 14.4). International cooperation between national consumer protection agencies in cross-border electronic commerce is also promoted. The CPTPP consolidates and builds off the

56、commitmentsfound in various bilateral PT As between its members.Similarly, the United States-Mexico-Canada Agreement (USMCA) requires laws protecting consumers from fraudulent and deceptive online activity (Article 19.7) and strong measures on spam (Article 19.13). The EU-Japan economic partnership

57、agreement also includes a binding commitment on spam focused on prevention, consent, identification and recourse (Article 8.79). In addition, Japan and the EU agree to maintain regulatory dialogue on e-commerce, with a view to sharing methodologies, including in regard to consumer protection, cybers

58、ecurity and combatting unsolicited commercial electronic messages (Article 8.80).Both the USMCA and CPTPP include the requirement for domestic personal information protection regimes and commitments to cross-border information transfers as well as the prohibition of data localization as a condition

59、for doing business. The personal information protection provisions in both instances encourage unon-discriminatory practices to protect users of digital trade - meaning that a foreign national should receive the same treatment as a national citizen. For some experts, the provision signals away towar

60、ds ensuring the extraterritorial application of countries privacy regimes if built upon in certain ways.65 By contrast, the Canada-EU Comprehensive Economic and Trade Agreement (CETA) includes a slightly softer requirement that parties “should” adopt measures protecting personal information of e-com