Brian Chau is a JD candidate at Osgoode Hall Law School.

A significant problem that arises with internet censorship comes from the sheer volume and infinite forms of data generated on a daily basis across the world. An analogy can be drawn to the practical realities of commercial fishing – for every net cast into the water, there is a significant proportion of unintended targets caught and subsequently discarded.

Governments across the world have taken varied approaches to internet censorship, namely the use of information systems to enforce censorship regimes consisting of blanket restrictions and filters. The most pervasive of these restrictions have led to substantial side effects, including serious impacts on the ability of cross-border companies to conduct business in these countries. For example, China’s censorship rules were a major factor in Baidu surpassing Google’s market share in the world’s largest market of internet users.

The Study

In a study by Brian Hindley and Hosuk Lee-Makiyama, the European Centre for International Political Economy (ECIPE) argues that the censorship of the internet is open to a WTO challenge, on the grounds that it effectively restricts the trade of cross-border internet services.

WTO member states are arguably obliged to permit an unrestricted supply of cross-border internet services, but this must be balanced against a nation’s sovereign right to restrict trade on the grounds of protecting public morals or public order. This begs the question of whether the censorship regimes currently employed constitute a minimal impairment on free trade.

Given the widespread use of practices such as permanent bans and blockages of entire websites and web services, it can be reasonably inferred that some of the existing means are grossly disproportionate in terms of impacts to commercial activity.

The report suggests that countries with pervasive censorship regimes with sophisticated filtering technologies may be required to adopt more selective filtering approaches. It may be argued that this constitutes an impractical burden on existing infrastructure, but that would only apply for countries with relatively unsophisticated censorship technologies.

Exception for Public Morals

The strongest argument is likely that a balance needs to be established between the state’s interest in protecting public morals and the promotion of free trade. A two tier test for public morals exceptions has been introduced by the WTO Appellate Body:

1. Show that the measures are necessary for public morals and order or for national security and;
2. Pursues a less trade-restrictive measure to obtain its objectives if one is reasonably available, taking into account the interest being pursued and the desired level of protection.

It is my opinion that the first tier of the test will not have a significant impact, given that the definition of public morals by its very nature is ill-defined and ambiguous at best. For example, in Thailand, the royal institution is considered a major part of the social conscience and thus criticism of the royal family, “lèse majesté” is banned. Without consensus on a global position on royalty, what reasonable grounds could one argue that this ban is not necessary for national security?

It is the second tier of the test that I believe will be the crux of the debate. It can be used to argue means to open up censorship policies, effectively reducing protectionist trade barriers currently faced by foreign companies seeking entry to some of the world’s largest and lucrative markets.

There is perhaps an additional social benefit that may result from these debates - a WTO challenge will force governments to review existing social policies, many of which are potentially outdated, and update them to fit the current social norms and practical realities. With hope, less information will be needlessly and arbitrarily filtered out, with the end result being a better internet experience for the end user.

Broader Context

The internet is a global phenomenon that has played a pivotal role in modernizing how both corporations and consumers access even the most rudimentary of information. The non-traditional nature and cross-border growth of the internet is a major headache for nations as they struggle to control and filter what is considered inappropriate content. From a legal perspective, there are significant jurisdictional issues encountered when information hosted at one point in the globe can, theoretically, be accessed by a system at any other physical location.

Governments have traditionally used censorship as a tool to suppress communications that they have considered objectionable, sensitive or inconvenient. Examples of censorship include banning the distribution of materials promoting hate against protected groups, child pornography, and politically sensitive documents. As censorship effectively restricts the freedom of citizens to access certain types of information, nations have used it with various levels of success to achieve religious and moral objectives.

In the context of internet censorship, government around the world have taken major steps to actively filter and monitor data that its citizens can access within its national boundaries, ranging from full control (North Korea) to nominal control (Canada). Some countries have developed highly sophisticated filtering systems, with the most notable being the “Great Firewall of China”. More information on the prevalence of internet censorship can be found from the Reporters Without Borders website.