Columns Archive

Bridging the digital divide

Global efforts to bridge the technology gap between the developed and developing world focus appropriately on building the capacity of developing countries by providing much needed hardware, software, and skills training. E-commerce development, although a vital global issue, is a long-range goal for those engaged in digital divide work, since for many developing countries basic telephone service and computer availability are more realistic aims for the short-term.

While the legal issues associated with the digital divide may seem like a mere afterthought, an effective, reliable, and internationally consistent legal framework may foster foreign investor confidence and provide tangible benefits once a critical mass of technological infrastructure and skills are in place.

The challenge of bridging the legal digital divide should not be underestimated. Earlier this month I participated in a United Nations-sponsored conference on Asian e-commerce law development and harmonization in Bangkok. It was hosted by the U.N. Economic and Social Commission for Asia and the Pacific, in cooperation with a large number of U.N. agencies, including the U.N. Conference on Trade and Development, the International Trade Centre, and the U.N. Commission on International Trade Law. The conference succeeded in demonstrating both the energy and enthusiasm of the developing world for e-commerce as well as highlighting the difficulty of delivering effective legal training and policy-making skills.

On the positive side, the realization that e-commerce can play an important role in economic development has clearly reached every corner of the globe. Sitting side-by-side with Asian e-commerce leaders such as South Korea and Singapore were representatives from Myanmar to Maldives and Bangladesh to Bhutan, countries rarely seen at e-commerce events.

It was quickly revealed that Asia is not content to sit on the e-commerce law sidelines. While the existence of e-commerce statutes in countries such as India, Malaysia, and Thailand is known, many were surprised to learn that countries such Myanmar and Bhutan have draft e-commerce regulations awaiting enactment.

Although such enthusiasm for e-commerce legislation is admirable, it also points to some significant dangers. While e-commerce legislation is a valuable tool to ensure online contractual certainty, it does not replace the core components of economic development.

In fact, some presentations left the distinct impression that there are countries that have put the cart before the horse. For example, one presentation on Cambodian e-commerce noted that the country faced barriers such as poor infrastructure, weak institutions, low levels of literacy, and poverty. Yet the same presentation stated that the “greatest challenge” is the enactment of an e-commerce law.

Developing countries should be aware that beginning with e-commerce legislation is likely to result in disappointment, not development. The basic information technology building blocks must first be established, an achievement that may then lead to e-commerce and finally to e-commerce legislation.

The conference also highlighted the unfortunate fact that many developing countries are being very poorly advised in this area. Interspersed among the delegates were consultants ready to terrify developing countries that their failure to act promptly on the legislative front would lead to e-commerce ruin. Moreover, the now-discredited Internet self-regulatory visions of the 1990s were also on display. One major multinational company extolled the benefits of a “value driven legal model” that would ensure no new or higher compliance costs to businesses as the best approach to Internet and e-commerce regulation.

Most troubling was the advice provided on the intellectual property front. Rather than focusing on matters of real concern to developing countries such as potential economic benefits from protection of traditional knowledge, the use of open source software, or the emergence of internationalized domain names that will allow people in developing countries to use their native language online, the delegates heard a presentation on the benefits of database legislation and business method patents. Keeping in mind that developed countries, including Canada, have resisted these reforms, they have no place in a discussion on developing country concerns.

The U.N. and the other participating agencies have consistently demonstrated great commitment in seeking to bring information technology law capacity to the developing world. With conferences, training materials, and exchange programs, the obvious desire to assist on this issue is matched only by the interest and enthusiasm from the developing world.

For these initiatives to succeed, however, more than just good materials and good intentions are needed. As a starting point, at least three issues must be addressed.

First, the narrow vision of e-commerce law development that focuses primarily on enforceable online contracts must be discarded in favour of a broader mandate, one that builds a legal framework premised on the actual needs of the developing countries. Broadening the discussion will mean focusing on cyber crime and anti-spam legislation, since certain developing countries risk being cut-off from some Internet communications if they are either viewed as harbouring spammers or as prime sources of fraud. Privacy legislation may also prove essential, particularly for those developing countries hoping to benefit from the global movement toward data outsourcing.

Second, groups whose chief concern it is to address developing country interests should be the primary sources of training and policy advice. That approach will both require a sharp reversal in the intellectual property protection dialogue and action to keep conflicted consultants at bay.

Third, training programs must focus on all levels of the legal environment including policy makers, lawyers, judges, and law students. E-commerce development will not come overnight to the developing world, but when it does, we must ensure that everyone is ready.

Comments are closed.