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Brooklyn Journal of International Law

Neha Mishra

First Page

359

Abstract

The interface of international trade law and online content regulation is problematic and complex. This Article examines the consistency of the regulation pertaining to Virtual Private Network (VPN) services in China with WTO law. It argues that although WTO law may be effective in disciplining protectionist aspects of online content regulations, they can neither scrutinize domestic values underlying such regulations nor guarantee the free flow of online content. 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 and fake news. But with respect to the resolution of trade disputes resulting from such regulations, trade tribunals must acknowledge that the regulation of content is entails politically and culturally sensitive issues, and therefore certain regulatory differences among countries may 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.

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