Why is Spam a Trade Issue? It Suits Dominant Developed Countries

In 2012, developed countries opposed treaty-level provisions negotiated in the World Conference of International Telecommunications (WCIT) of the International Telecommunication Union (ITU) for inclusion in its International Telecommunication Regulations (ITRs), as treaty. However, less than ten years later, those very same countries are promoting such provisions in treaty-level instruments of the World Trade Organization (WTO). Since more countries are members of ITU than of WTO, it would appear logical that developed countries should now promote similar anti-spam provisions in the ITRs. But in fact, they do not. They continue to argue in ITU that treaty-level provisions are not needed and may even be harmful.

What is going on? Probably good old fashioned forum-shopping. Major developed countries wield more influence in WTO due to their economic power than in other forums such as ITU, so they prefer to negotiate in WTO.

World Conference on International Telecommunications

The 2012 International Telecommunication Regulations (ITRs) contain an article on combating spam, referred to as “unsolicited bulk electronic communications”. The article states:

7.1 Member States should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimise its impact on international telecommunication services.

7.2 Member States are encouraged to cooperate in that sense.

When this text was agreed upon in 2012, most developed countries objected to it. They refused to sign the treaty in question, arguing that the above provision on spam regulates Internet issues, invites governments to take content-based action and moves into the realm of regulating speech on the Internet (see here and here (p. 75).

As argued in an academic article and book (pp. 76-78), this is a highly questionable interpretation of the text.

First of all, the provision on spam does not contain binding language. (Note “should endeavour” and “are encouraged”.) So it is not clear how the article could “regulate” anything.

Second, many countries already had practices regarding spam, so the articles would presumably have no impact on them. More importantly, the ITRs are subordinate to the ITU Constitution, which recognises human rights and is consistent with relevant UN instruments on human rights. So, nothing in the ITRs can limit the human rights obligations of states. To make this clear, a provision was added to the Preamble of the 2021 ITRs, which says, “Member States affirm their commitment to implement these Regulations in a manner that respects and upholds their human rights obligations.”

Third, the following was added to Article 1 on the Purpose and Scope: “These Regulations do not address the content-related aspects of telecommunications.” In this context, the term content must be understood in accordance with its ordinary meaning, which is “that which is contained in a receptacle”, that is, the actual content of telecommunication. Since the ITR article on spam must get interpreted in light of Article 1, which defines the scope of the treaty and since under Article 1, the ITRs do not address content, the article on spam cannot be said to address content.

Thus, the article on spam is about measures to counter spam that do not depend on content. There are many such measures (such as address filtering), and some are described in Recommendations ITU-T X.1231 and X.1240.

Fourth, the article on spam encourages countries to cooperate, which could be understood to include cooperation to adopt appropriate spam legislation and cooperate when doing so. Indeed, Resolution 52 of the 2012 World Telecommunication Standardization Assembly (WTSA) on countering and combating spam, which was agreed by consensus, invites member states to “take appropriate steps to ensure that appropriate and effective measures are taken within their national and legal frameworks to combat spam and its propagation”.

Many countries have spam legislation. Presumably, it would be desirable for countries to cooperate in adopting best practices in these areas. That is, develop spam legislation that does not impinge on human rights, respects due process, and does not excessively restrict commercial speech.

Of course, a country might impose content filtering, but it could not invoke the ITRs as a legal basis for doing so. That is, the “necessary measures” referred to in the ITR spam article cannot be understood to include content filtering.

Paradoxically, those who refuse to implement the spam article because they say it is related to content are in effect arguing against limitations on measures to counter spam. Indeed at present, there are no (to the author’s knowledge) international treaties that limit what states can do regarding spam, apart from obligations relating to human rights. If it is understood that the ITR spam article does not relate to content, it follows that the article obliges states not to deal with the content-related aspects of spam. That is a significant restriction. Those who state that the ITR spam article applies to content are, in effect, denying the restriction and opting for the status quo where there are no restrictions (apart from human rights) regarding how to deal with spam. And they are creating a situation where there is no basis in international law (apart from human rights) to complain regarding anti-spam measures.

The World Trade Organization

Be that as it may, it appears the views of developed countries have changed because they now strongly support anti-spam language in trade agreements. See, for example, the proposals discussed in the margins of the WTO that appear to have reached consensus. Those proposals were unfortunately not publicly available when this paper was written, but a leaked version is reproduced below.

As can be seen, the WTO proposals are far more detailed and prescriptive than the 2012 ITRs. And there is nothing in the WTO instruments that prohibits applying content-related measures, nor is there any overarching commitment to respect human rights.

Thus, from the point of view of human rights and restrictions on freedom of speech, the WTO proposals would appear more dangerous than the ITR’s article.

Yet developed countries that criticise the ITR article are pushing for the adoption of the WTO proposals.

Forum shopping

So why are developed countries supporting treaty-level provisions in WTO that, from their point of view, should be less acceptable than the ITU provision, which they did not accept?

The answer is no doubt that developed countries have far greater negotiating power in WTO than they do in ITU. The sad history of how the developed world has consistently bullied the developing world into accepting trade deals that are unfavourable to them is well documented here and here.

The situation has not improved. Take the call by a vast majority of developing countries and civil society organisations around the world to waive certain WTO provisions that make it difficult for them to produce anti-COVID vaccines: the response of developed countries has been to engage in a sham process meant to undermine that call and continue to prevent developing countries from producing their own vaccines.

Spam is not the only area in which developed countries attempt to move discussions from ITU into WTO to benefit from their greater bargaining power. It is one more example of the hypocrisy of developed countries. In particular, regarding discussions on spam in ITU, developed countries stated, in 2021, at the same time as they were promoting treaty-level provisions in the WTO, that:

• Addressing issues such as unsolicited bulk electronic communications in a treaty instrument may have the unintended consequence of impeding network operators’ ability to quickly respond to changing network environments.

• The provision in the 2012 ITRs is not flexible enough to support the speed of change necessary to counter the phenomenon of unsolicited bulk electronic communications. Some members added that the terminology “necessary measures” could hinder the private sector service providers working to tackle this issue.

• The provision in the 2012 ITRs is not necessary as it is no longer applicable or flexible.

If the 2012 ITR provision is no longer applicable because it is not flexible, then why not negotiate improved language in the ITU? And why is the much more detailed and prescriptive WTO language flexible and less likely to impede innovation?

What explanation is there other than to take advantage of the greater bargaining power of developed countries in WTO?

Perhaps developed countries would be less keen to bring their proposals to WTO if it were reformed to meet its goal, which is to facilitate international trade to benefit all the world’s people.

Leaked version of WTO proposal regarding spam:

Unsolicited commercial electronic messages:

Co-convenors’ note: This article was cleaned in informal discussions then endorsed at the 5 February 2021 plenary meeting [of the Joint Statement Initiative on e-commerce].

1. “Commercial electronic message” means an electronic message which is sent for commercial purposes to an electronic address of a person 1 through telecommunication services, comprising at least electronic mail and to the extent provided for under domestic laws and regulations, other types of messages. “Unsolicited commercial electronic message” means a commercial electronic message that is sent without the consent of the recipient or despite the explicit rejection of the recipient.

2. [Parties/Members] recognise the importance of promoting confidence and trust in electronic commerce, including through transparent and effective measures that limit unsolicited commercial electronic messages. Each [Party/Member] shall adopt or maintain measures that:

(a) require suppliers of commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages; or

(b) require the consent, as specified in the laws or regulations of each [Party/Member], of recipients to receive commercial electronic messages; or

(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.

3. Each [Party/Member] shall endeavour to ensure that commercial electronic messages are clearly identifiable as such, clearly disclose on whose behalf they are sent, and contain the necessary information to enable recipients to request cessation free of charge and at any time.

4. Each [Party/Member] shall provide access to either redress or recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraph 2.

5. [Parties/Members] shall endeavour to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.

The author is a well-known Internet governance expert. He headed the WCIT-12 secretariat team at the ITU conference held in Dubai in December 2012. The views are personal.