Mishra: Breaking Down Digital Walls: The Interface of International Trade Law and Online Content Regulation through the Lens of the Chinese VPN Measure

Neha Mishra (Australian National Univ. - Law) has posted Breaking Down Digital Walls: The Interface of International Trade Law and Online Content Regulation through the Lens of the Chinese VPN Measure (Brooklyn Journal of International Law, forthcoming). Here's the abstract:

The interface of international trade law and online content regulation is problematic and complex. This article examines the consistency of the regulation of unauthorized Virtual Private Network services (“VPNs”) in China with WTO law to demonstrate that while extant international trade rules may be effective in disciplining protectionist aspects of online content regulations, they can neither scrutinize domestic values underlying such regulations nor guarantee a free and open internet. Thus, existing rules contained in international trade agreements play a limited role in balancing domestic socio-cultural and political values vis-à-vis online censorship with an open, globally interconnected internet enabling seamless digital flows.

The several ongoing dialogues in relevant global, multistakeholder, and transnational fora could eventually generate international consensus on critical aspects of online content regulation such as disinformation. But with respect to the resolution of digital trade disputes resulting from such regulations, trade tribunals must acknowledge that online content regulation is often politically and culturally sensitive and some regulatory differences among countries could be entirely irreconcilable. Therefore, when such disputes arise before a trade body, both caution and pragmatism are necessary in applying international trade law to such measures. Further, although governments are looking into varied aspects of digital and data regulation in ongoing plurilateral and bilateral trade negotiations, they are unlikely to reach any meaningful agreement on digital trade provisions that limit their ability to regulate online content.