Addressing the Global Data Divide through Digital Trade Law

Abstract

The global data divide has emerged as a major policy challenge threatening equitable development, poverty alleviation, and access to information. Further, it has polarised countries on either side of the data schism, who have often reacted by implementing conflicting and sub-optimal measures. This paper surveys such policy measures, the politics behind them, and the footprints they have left on the digital trade or electronic commerce rules contained in free trade agreements (FTAs). First, this paper details an understanding of what constitutes the global data divide, focusing on three components, namely access, regulation, and use. Second, the paper surveys electronic commerce or digital trade rules in FTAs to understand whether existing rules deal with the widening data divide in a comprehensive manner and, if so, how. Our primary argument is that the existing FTA disciplines are deficient in addressing the global data divide. Key problems include insufficient participation by developing countries in framing digital trade rules, non-recognition of the data divide affecting developing countries, and lack of robust and implementable mechanisms to bridge the data divide. Finally, we present a proposal to reform digital trade rules in line with best practices emerging in FTA practice and the main areas where gaps must be bridged. Our proposals include enhancing technical assistance and capacity-building support, developing a tailored special and differential treatment (SDT) mechanism, incentivising the removal of data-related barriers by designing appropriate bargains in negotiations, and boosting international regulatory cooperation through innovative and creative mechanisms.

Keywords: Trade; Data; Digital Divide