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    Southeast Asian States Move To Harmonise Their E-Commerce Laws

    Published on 12 November 2012 @ 12:52 pm

    By for Intellectual Property Watch

    Cebu City, Philippines – The 10 member states of the Association of Southeast Asian Nations (ASEAN) met over the weekend to advance the groundwork for what is perceived as a challenging but progressing task of harmonising their e-commerce laws, ahead of the region’s nearing deadline of creating an integrated economy by 2015. In three years’ time, the 10 Southeast Asian countries of Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam target the setting up of a functional ASEAN Economic Community (AEC). This is to result in the free movement of goods, services, investment, labor and capital across the region.

    Electronic commerce is seen as a key component for the ASEAN to realise its vision of having an integrated economy. Having a single market will enable ASEAN member states to, among other things, take advantage of the rapid economic development within the region and in other neigbouring Asian countries. Intellectual property is also seen as playing a role in harmonising e-commerce, especially at this time of unabated shift of global business to the online economy.

    A two-day workshop, a first of its kind, was held here to review and make proposals for ASEAN member states to consider in finalising measures aimed at harmonising their e-commerce laws. The workshop was facilitated by the United Nations Conference on Trade and Development (UNCTAD), a UN body whose aim is to promote the integration of developing countries into the world economy.

    At the workshop, trends, challenges and opportunities in harmonising the e-commerce laws within the ASEAN region were identified and with countries making individual reports on their progress, issues, challenges and legal priorities in enforcing, and for some countries that are still lagging behind, in drafting their e-commerce regulations.

    The closed-door workshop was attended by representatives from all 10 member states, some officials from the ASEAN Secretariat and UNCTAD, and some experts tapped to review and facilitate the discussions on harmonisation of e-commerce laws in the region.

    Torbjörn Fredriksson, chief of the ICT Analysis Section at UNCTAD, said the ASEAN e-commerce harmonisation holds a particular importance as the region pioneered a decade ago the adoption of a harmonised legal framework for e-commerce in the developing world.

    “What is going on on here is not only for the ASEAN, but also for countries in other parts of the world to learn from this,” Fredriksson told Intellectual Property Watch in an interview. UNCTAD facilitated similar efforts in Latin America and in the East African Community.

    The ASEAN, as it stands now, is a mixed bag of already relatively wealthy member states in Singapore and the oil-rich Brunei, populous and developing economies like the Philippines and Indonesia, and least developed economies like Laos.

    Budi Yuwono, senior officer for the ICT sector at the ASEAN Secretariat, said in an interview that this early it is difficult to give specific targets for the e-commerce harmonisation when asked on the timetable. While some progress has been made, some hurdles are also inevitable. “It has been a learning process for most of us,” Yuwono said.

    Priority Areas For Harmonisation

    In the run-up to the workshop, the ASEAN and UNCTAD conducted in October two surveys on the “existing legal frameworks for e-commerce activities” of both governments and the private sector in ASEAN countries, according to a release from UNCTAD.

    The results from the surveys were used during the workshop to identify specific areas for discussion among member states and to single out key drivers and challenges in harmonising e-commerce regulations in the region, said Cécile Barayre- El Shami, UNCTAD program manager for e-commerce and law reform.

    Chris Connolly, UNCTAD consultant and director of Galexia Consulting, told Intellectual Property Watch that at least three priority areas were identified for ASEAN member states to consider in their push to arrive at a common e-commerce regulations. These are electronic transaction laws, cybercrime laws and privacy and data protection laws.

    In the area of electronic transactions, except for Laos and Cambodia, the remaining eight ASEAN member states already have electronic transaction regulations.

    “Back in 2004, less than half of the countries had electronic transaction laws in place. And the two remaining countries both had draft laws. Eight out of ten is [a] good [number] and this gives us confidence that we are very close to achieving that 2015 goal,” Connolly said.

    On the other hand, progress has been slower in the two priority areas of cybercrime law and privacy law. Tentative results of the survey showed that of the 10 ASEAN member states, Cambodia, Laos and Malaysia do not have cybercrime regulations, while only Malaysia, Singapore and the Philippines have existing privacy laws, an observer said. [modified]

    Regulating cybercrime, with its internet intermediary component, and privacy and data protection, are both touchy areas under e-commerce.

    A case in point is the Philippines, which recently enacted a cybercrime law, a move not welcomed by many stakeholders due to what it seen as last-minute inclusion of a provision against libel and what is alleged as a lack of enough immunity provisions for service providers.

    Other areas being examined to harmonise the region’s e-commerce laws are consumer protection, competition, online dispute resolution, to include domain names resolution, and online content regulation. Online dispute resolution and online content regulation are two areas closely related with intellectual property rights protection. UNCTAD said the two areas are slated for discussion under Framework II, referring to the subsequent stage. “The next phase is going to be after UNCTAD publishes the result of their study in April 2013,” Yuwono said.

    ASEAN has a Working Group on Intellectual Property Cooperation which has acted as a consultative body for regional cooperation on IP since 1996.

    Challenges Now and Ahead

    In any harmonisation efforts, the gap between and among participating countries, particularly economic differences, is seen as a big challenge, and this also proves true in harmonising the e-commerce laws in the ASEAN region.

    “The issue is not every country has a good awareness or level of importance when it comes to e-commerce. Some countries have a very strong commitment to internet penetration and with e-commerce very high in their agenda. In other countries, however, it is not a priority,” Connolly said.

    From the survey results, a mammoth barrier to harmonisation is in the area of capacity building. “You can imagine that in some countries, the minute you get skills in e-commerce, you tend to get headhunted by the private sector so the number of people [in government] who have good knowledge is quite limited,” Connolly said.

    Particularly, UNCTAD has extended support to the governments of Cambodia and Laos in building capacity and preparing their e-commerce laws.

    In addition, there is the issue of funding for the enforcement of regulations. “You can put the laws on the book, but nothing will happen unless you have a regulator that will enforce it. Privacy law, for example, always requires a data protection commission and that is expensive,” Connolly said.

    In a region as diverse as Southeast Asia, where dominant religious beliefs vary from one country to another and from one group to another, even religion, which can influence the type of data allowed for use in commerce, could be an issue in the harmonisation efforts, said Yuwono.

    “This will have to be looked upon by regulators when people are selling digital content like movies,” he said.

    No Single, Binding E-Commerce Law

    With the regional bloc still refining the details of the harmonisation, what is obvious now is the strong probability of having no single, binding and from scratch or original regional e-commerce regulations.

    “It is not going to be one binding law for the whole ASEAN. There may be differences,” Yuwono said, noting that what the ASEAN harmonisation wants to achieve is to have “predictability” in the use of e-commerce within the region, particularly for the benefit of the business sector.

    Connolly said the exact ASEAN method of e-commerce harmonisation could “be discussed over the years.” Harmonisation models being looked into can include harmonisation through a directive, similar to that of the European Union. Under EU laws, a directive “lays down certain end results that must be achieved in every member state,” but still gives each member state the “freedom in deciding how to do so.”

    “Rather [than] ASEAN developing its own models from scratch, the countries in general agreed that they should look at international best practices rather than developing their own as it is impossible for the ASEAN to go down that path,” Connolly said.

    He added that mechanisms could also be in the form of bilateral assistance and not only through regional assistance. “In the past, Malaysia, for example, invited people from Myanmar to come to Malaysia and to work with the regulators there for a few months and then they go back.”

    Aside from this, Yuwono said harmonisation could also start from technical collaboration. “Sometimes, it doesn’t need to start with having the legal foundation, but it can start with the technical foundation. We have some technical working groups that discuss part of those legal areas,” he said.

    With only three years left before the 2015 economic integration deadline, one sure thing is that the e-commerce harmonisation efforts in the ASEAN region will continue even after the 2015 target. “This is an on-going process, you will never finish, especially in the area of ICT where everything is changing – there are new technologies, there are new applications,” Fredriksson said.

    Next Steps

    The recommendations from the workshop will be presented to the 13th ASEAN Telecommunications and IT Senior Officials Meetings (Telsom) on Tuesday. The output from the workshop will also serve as an input to the UNCTAD’s Review of E-Commerce Laws Harmonization in ASEAN set for publication in 2013.

    Aside from Telsom, the Philippines is also the host to the 12th ASEAN Telecommunications and IT Ministers Meeting (Telmin), all happening this week here in Cebu, one of Philippines’ most developed provinces.

    According to a release posted on the official government news website of the Philippines, two highlights of the week-long ASEAN conference are the signing of the Mactan Cebu Declaration and the first ASEAN ICT Awards.

    The release read that the declaration “aims to improve cooperation between ASEAN member states in ICT-related endeavors such as cybersecurity, e-commerce and implementation of strategic thrusts in the ASEAN ICT Masterplan.

    The ASEAN ICT Awards will be given to organisations “that have shown outstanding ICT products/services and/or most respected business accolade in the ASEAN ICT industry.” Categories are public sector, private sector, corporate social responsibility, digital content and start-up companies.

     

    Maricel Estavillo may be reached at maricelestavillo@gmail.com.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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