New rules for the digital economy: Brazil in the international negotiations on e-commerce

INTRODUCTION

Digital technologies have been transforming the global economy with profound impacts on the way goods and services are developed, produced, marketed, distributed and consumed across borders. Transitioning to a knowledge- and-data-based economy requires more circulation of and access to data-mostly personal information! As such, the importance of transborder data flows cannot be overstated. And regulating them is central for securing resources and monetizing soft assets. Even if there is no common agreement on how a data-based economy is to be regulated, on the necessary flexibilities and exceptions, and particularly on whether data are ready for a binding language in international trade agreements, there have been movements to internationalize policies for e-commerce and transborder data flows.

The e-commerce agenda was embedded in trade multilateralism, initially by means of discussions on e-commerce within the World Trade Organization and the subsequent 1998 Work Program on Electronic Commerce (JOB/GC/144), which was defi ned as “the goods and services production, distribution, commercialization, and sale or supply by electronic means”. However, that agenda was enhanced in the context of various preferential trade agreements, thus becoming more complex and requiring greater convergenceamong trade and digital policy areas. In a debate built around Chinese and US technology companies and the EU implementation of the General Data Protection Regulation, more studies are still required from the perspective of developing countries, from the point of view of both regulation and digital strategies. Their economic capacity asymmetries to participate in a data-based industrial development are widening. Most developing countries will be Artificial Intelligence consumers, not producers—the same for other
data-based sectors.

Historically, Brazil has had expressive participation in Internet governance forums, as well as in multilateral trade negotiations, though both agendas were conducted in isolation for quite some time. In the domestic sphere, the country has a tradition of protecting consumer rights and recently passed a law on Internet governance, personal data privacy and protection. Particularly after 2016, Brazilian trade policies have changed, with a new focus on negotiating bilateral free trade agreements and active participation in discussions around e-commerce, both bilaterally and within the WTO plurilateral negotiations.

It is therefore advisable to look into particularities of the Brazilian approach to e-commerce and of the balance between trade measures and essential digital issues that had been historically incorporated to the country’s national and international agendas, such as consumer protection, personal data privacy and protection. Likewise, it is important to understand how Brazil’s positions about e-commerce rank in the digital regulatory race between the US, the EU and China.