Protecting Public Morals in a Digital Era: Revisiting the WTO Rulings in US – Gambling and China – Publications and Audiovisual Products

Abstract

Competing values such as promoting free trade in services or protecting public morality coexist in a perilous balance nowadays. This interaction appears to be exacerbated by the manifold possibilities of supplying services that the digital age brings with it. Technological advances and rapid innovations transform the manner that services are supplied and call for swift reaction by regulatory authorities. Furthermore, electronic communications erode long-standing traditions in regulating various services industries (supply side) and consumer behaviour (consumption side) and sometimes allow for easy circumvention of law. The US – Gambling and China – Audiovisual Products rulings are the first pronouncements of the WTO judiciary on the possible clash between trade expansion, on the one hand, and protection of public morals, on the other. After a critical review of these two important recent rulings on the concept of public morality and its treatment by the WTO judiciary, the paper goes on to discuss the changing scope of regulatory sovereignty regarding the protection of public morality in a digital landscape; the paradigm shift in regulatory approaches that technological advances bring about and the ability of WTO Members to adapt to this new environment; and the role of courts and non-state actors.

Keywords: World Trade Organization, Public Morals, Filtering, Cyberspace and Human Rights, Digital Age, US – Gambling, China - Audiovisual Products, Necessity Test, General Exceptions

JEL Classification: F13, K33, L83, L86, O38