In 2012, developed countries opposed treaty-level provisions negotiated at the World Conference of International Telecommunications (WCIT) of the International Telecommunication Union (ITU) for inclusion in the ITU’s International Telecommunication Regulations (ITRs), a treaty. However, now, less than ten years later, the same countries are promoting such provisions in treaty-level instruments of the World Trade Organization (WTO). Since more countries are members of the ITU than of the WTO, it would be logical for developed countries to promote similar anti-spam provisions in the ITRs now. But, in fact, they do not. They continue to argue that, in the ITU, 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 the WTO, due to their economic power, than they do in other forums such as the ITU, so they prefer to negotiate in the WTO.

The remainder of this article explains the above in some detail.

The 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 minimize its impact on international telecommunication services.

7.2 Member States are encouraged to cooperate in that sense.

When this text was agreed on in 2012, most developed countries objected to it, and refused to sign the treaty in question, arguing that the above provision on spam regulates internet issues and 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 endeavor” and “are encouraged”. So, it is not clear how the article could “regulate” anything.

Second, many countries already had practices in place regarding spam, so the articles would presumably have no impact on them. More importantly, the ITRs are subordinate to the ITU Constitution, which recognizes human rights (and is consistent with the 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 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 a telecommunication. Since the ITR article on spam must be interpreted in light of Article 1, which defines the scope of the treaty and since, pursuant to Article 1, the ITRs do not address content, the article on spam cannot be seen to be addressing 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, and this could be understood to include cooperation to adopt appropriate spam legislation, and to 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 to adopt best practices in these areas. That is, spam legislation that clearly does not impinge on human rights, that respects due process, and that 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 on the grounds that it is related to content are, in effect, arguing against limitations on measures to counter spam.

Paradoxically, those who refuse to implement the spam article on the grounds that it is related to content are, in effect, arguing against limitations on measures to counter spam. Indeed, at present, there aren’t (to the author’s knowledge) any 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, then that article puts an obligation on 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 effectively denying the restriction and opting for the status quo, where there are no restrictions (apart from human rights) regarding how to deal with spam. Consequently, 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 that the views of developed countries have changed, because they are now strongly supporting anti-spam language in trade agreements. See, for example, the proposals discussed in the margins of the WTO that appear to have reached a consensus. Those proposals were, unfortunately, not publicly available when this article was written, but a leaked version has been reproduced at the end of this article.

There is nothing in the WTO instruments that prohibits applying content-related measures, nor is there any overarching commitment to respect human rights.

As can be seen, the WTO proposals are far more detailed and more prescriptive than the text of 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 to be more dangerous than the ITRs article.

Yet, developed countries that criticize the ITRs article are pushing for adopting the WTO proposals.

Forum Shopping

So, why are developed countries supporting treaty-level provisions in the 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 the WTO than they do in the 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.

Developed countries have far greater negotiating power in the WTO than they do in the ITU.

The situation has not improved. Take, for example, the call by a vast majority of developing countries and civil society organizations around the world for a waiver on certain WTO provisions that make it difficult for them to produce anti-Covid vaccines. Developed countries have responded to this by engaging in a sham process that is meant to undermine that call and to continue to prevent developing countries from producing their own vaccines.

And spam is not the only area in which developed countries attempt to move discussions from the ITU into the WTO, so as to benefit from their greater bargaining power.

This is just another example of the hypocrisy of developed countries. Particularly, regarding discussions of spam in the ITU, developed countries have stated in 2021, at the same time as they were promoting treaty-level provisions in the WTO, that:

  1. 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.
  2. 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, with some members adding that the terminology “necessary measures” has the potential to be a hindrance to the private sector service providers working to tackle this issue.
  3. 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 the WTO?

But, perhaps, developed countries would be less keen to bring their proposals to the WTO if it were reformed to meet its goal, which is facilitating international trade so that it benefits all the world’s people.

Leaked Version of WTO Proposal Regarding Spam

(2) 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] recognize 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.