international system will tolerate flagrant filtering abuses and fail to defend freedom of
expression.
Filtering Curbs through Trade Policy
Taking as a given the notion that freedom of expression is desirable and deserving of protection, but questioning the ability of the international system to enforce commitments under
the ICCPR in a meaningful way, one might look to other avenues for enforcement. Because
agreements under the World Trade Organization (WTO) include the possibility for dispute settlement backed by economic remedies, it has been suggested that one way to enforce freedom of expression would be to cast it as a market access issue and to seek redress by
bringing a case before a WTO panel.
33
In a nutshell, the theory of such a case would be as follows: If a member had committed to
giving market access for the production, distribution, marketing, sale, or delivery of content,
but nonetheless was filtering in a way that obstructed this trade, another member whose
economy had suffered from the action would request the WTO to establish a panel to hear
the case.
The case would not necessarily be clear-cut, however. Similar to the way that the ICCPR
allows limitations, Article XIV of the WTO’s General Agreement on Trade in Services (GATS)
permits members to make exceptions to their market-access commitments if taking measures
necessary to protect public morals, health, or safety; to maintain public order; or to bolster
consumer protection. Article XIVbis extends these exceptions to include measures in the interest of security.
The WTO case Measures Affecting the Cross-Border Supply of Gambling and Betting Services
34 brought by Antigua and Barbuda against the United States demonstrates how these
provisions would be understood to interact with market access commitments. In this challenge, the United States relied in part on GATS Article XIV in defending restrictions on the supply of gambling and betting services via the Internet.
35 In determining whether the measures
were necessary, the Appellate Body indicated:
The standard of ‘‘necessity’’ provided for in the general exceptions provision is an objective
standard. To be sure, a Member’s characterization of a measure’s objectives and of the effectiveness of its regulatory approach—as evidenced, for example, by texts of statutes, legislative history, and pronouncements of government agencies or officials—will be relevant
in determining whether the measure is, objectively, ‘‘necessary.’’
A panel is not bound by these characterizations, however, and may also find guidance in
the structure and operation of the measure and in contrary evidence proffered by the complaining party. In any event, a panel must, on the basis of the evidence in the record, independently and objectively assess the ‘‘necessity’’ of the measure before it.
36
The Appellate Body then explained how it applies this standard:
The process begins with an assessment of the ‘‘relative importance’’ of the interests or
values furthered by the challenged measure. Having ascertained the importance of the
88
Mary Rundle and Malcolm Birdling
expression.
Filtering Curbs through Trade Policy
Taking as a given the notion that freedom of expression is desirable and deserving of protection, but questioning the ability of the international system to enforce commitments under
the ICCPR in a meaningful way, one might look to other avenues for enforcement. Because
agreements under the World Trade Organization (WTO) include the possibility for dispute settlement backed by economic remedies, it has been suggested that one way to enforce freedom of expression would be to cast it as a market access issue and to seek redress by
bringing a case before a WTO panel.
33
In a nutshell, the theory of such a case would be as follows: If a member had committed to
giving market access for the production, distribution, marketing, sale, or delivery of content,
but nonetheless was filtering in a way that obstructed this trade, another member whose
economy had suffered from the action would request the WTO to establish a panel to hear
the case.
The case would not necessarily be clear-cut, however. Similar to the way that the ICCPR
allows limitations, Article XIV of the WTO’s General Agreement on Trade in Services (GATS)
permits members to make exceptions to their market-access commitments if taking measures
necessary to protect public morals, health, or safety; to maintain public order; or to bolster
consumer protection. Article XIVbis extends these exceptions to include measures in the interest of security.
The WTO case Measures Affecting the Cross-Border Supply of Gambling and Betting Services
34 brought by Antigua and Barbuda against the United States demonstrates how these
provisions would be understood to interact with market access commitments. In this challenge, the United States relied in part on GATS Article XIV in defending restrictions on the supply of gambling and betting services via the Internet.
35 In determining whether the measures
were necessary, the Appellate Body indicated:
The standard of ‘‘necessity’’ provided for in the general exceptions provision is an objective
standard. To be sure, a Member’s characterization of a measure’s objectives and of the effectiveness of its regulatory approach—as evidenced, for example, by texts of statutes, legislative history, and pronouncements of government agencies or officials—will be relevant
in determining whether the measure is, objectively, ‘‘necessary.’’
A panel is not bound by these characterizations, however, and may also find guidance in
the structure and operation of the measure and in contrary evidence proffered by the complaining party. In any event, a panel must, on the basis of the evidence in the record, independently and objectively assess the ‘‘necessity’’ of the measure before it.
36
The Appellate Body then explained how it applies this standard:
The process begins with an assessment of the ‘‘relative importance’’ of the interests or
values furthered by the challenged measure. Having ascertained the importance of the
88
Mary Rundle and Malcolm Birdling