JOB/GC/203  
 
30 October 2018  
(18-6817) Page: 1/9 
General Council  Original: English  
 
JOINT STATEMENT ON  ELECTRONIC COMMERCE  
COMMUNICATION FROM BRAZIL  
The following communication , dated 30 October  2018, is being circulated at the request of the 
delegation of Brazil.  
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Following up on JOB/GC/176, Brazil presents in this communication text -based examples  on issues 
discussed under the J oint Statement process. Suggestions are not exhaustive and they are provided 
only as input for the discussion. They are not meant to be proposals and are without prejudice to 
the position of Brazil in future negotiations.  
SECTION  I 
Principles  
1. Considering the potential of digital trade1 as a social and economic development tool, Members 
recognize the importance of:   
 
(a) Clarity, transparency and predictability in their domestic regulatory frameworks in 
facilitating, to the maximum extent possible, the development of digital trade ; 
 
(b) Interoperability, innovation and competition in facilitating digital trade ; and 
 
(c) Facilitating the use of digital trade  by micro, small and medium sized enterprises . 
 
2. Internet should remain free and open for all legitimate commercial and development purposes, 
including by allowing increased access to information, knowledge and new techno logies.  
 
3. As a rule, rights and obligations should be the same and apply equally offline and online.  
 
4. Members shall retain the right to regulate in the public interest and to introduce new 
regulations within their territories to achieve public policy obje ctives.  
 
5. Suppliers responsible for the transmission, switching or routing shall treat isonomically any 
data package, without distinction based upon content, origin and destination, service, terminal or 
application.  
 
6. The discrimination or degradation of traffic may only derive from technical requirements 
essential to the adequate provision of services and applications and prioritization of emergency 
services. In the event of discrimination or traffic degradation, suppliers referred to in paragraph 5 
shall: 
 
(a) Refrain from causing damage to users;  
 
(b) Act with proportionality, transparency and isonomy;  
 
                                                
1 "Digital trade" is understood to mean the production, distribution, marketing, sale or delivery of goods 
and services by electronic means.  JOB/GC/203  
 
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  (c) Previously inform in a transparent, clear and sufficiently descriptive way to its users about 
the traffic management and mitigation practices adopted, including those related to network 
security; and  
 
(d) Offer services on non -discriminatory commercial conditions a nd refrain from conducting 
anti-competitive conduct.  
 
7. It is prohibited to block, monitor, filter or analyze the contents of the data packages in the 
provisi on of connection to the internet, charged or not , as well as in  the transmission, switching 
or routing.   
SECTION  II 
Electronic Contracts  
1. Members shall ensure that their legal systems allow for the formation of contracts by electronic 
means and that contracts shall not be denied legal effect, validity or enforceability for having been 
made by electronic means.  
Electronic signature and digital certification  
1. A Member  shall not deny the legal effect and admissibility as evidence in legal proceedings of 
an electronic signature and electronic authentication service solely on the basis that the service is 
in electronic form.  
 
2. Members  shall not adopt or maintain measures regulating electronic signature and electronic 
authentication services that would:  
 
(a) Prohibit parties to an electronic transaction from mutually determining the appropriate 
electronic methods for their transaction; or  
 
(b) Prevent par ties to an electronic transaction from having the opportunity to prove to judicial 
and administrative authorities that their electronic transaction complies with any legal 
requirements with respect to electronic signature and electronic authentication serv ices.  
 
3. Notwithstanding paragraph 2, a Member may require that, for a particular category of 
transactions, the method of authentication meets certain performance standards or is certified by 
an authority accredited in accordance with its law. Such requirem ents shall be objective, transparent 
and non -discriminatory and shall relate only to the specific characteristics of the category of 
transactions concerned.  
 
4. Members shall encourage the use of interoperable electronic trust and electronic 
authentication services, and the mutual recognition of electronic trust and electronic authentication 
services issued by recognised trust services providers.  
Unsolicited comm ercial  communications  
1. Members shall endeavour to protect end -users effectively against unsolicited direct marketing 
communications. To this end, in particular the following paragraphs shall apply.  
 
2. Members shall endeavour to ensure that natural and juridic al persons do not send direct 
marketing communications to consumers who have not given their consent.  
 
3. Notwithstanding paragraph 2, Members shall allow natural and juridical persons that have 
collected, in accordance with each Member's own laws and regulations, a consumer's contact details 
in the context of the sale of a product or a service, to send direct marketing communications to that 
consumer for their own similar products or servic es. 
 
4. Members shall endeavour to ensure that direct marketing communications are clearly 
identifiable as such, clearly disclose on whose behalf they are made, and contain the necessary 
information to enable end -users to request cessation free of charge and at any moment.  JOB/GC/203  
 
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  SECTION  III 
Online payment systems   
1. Members shall ensure that national online payment systems respect the following principles:  
 
(a) Interoperability to the payment system and between different payment systems;   
 
(b) Solidity and efficiency of payment systems and payment institutions, promotion of 
competition and forecast transfer of balances in electronic currency, when applicable, to 
other payment systems or institutions;  
 
(c) Non-discriminatory access to the services a nd infrastructures necessary for the operation of 
the payment systems;  
 
(d) Meeting the needs of end users, in particular freedom of choice, security, protection of their 
economic interests, non -discriminatory treatment, privacy and protection of personal dat a, 
transparency and access to clear and complete information on the conditions of service 
provision;  
 
(e) Reliability, quality and safety of payment services;  
 
(f) Regulators may decide about the amount and detail of any regulation associated to the 
payment system based on an assessment of the financial risk involved; and  
 
(g) Financial inclusion, observing the equivalent quality, safety and transparency standards in 
all payment systems.  
 
2. Members shall ensure the innovation capacity and diversity of business models of payment 
institutions and payment systems.  
SECTION  IV 
Return period and taxation  
1. Subject to conditions established in the domestic law of each Member, the sale of a good by 
electronic means or a sale of an electronic transmission shall only be considered completed after the 
return period has lapsed.  
 
2. Subject to conditions established in their respective domestic law , Members are entitled to 
collect taxes fr om cross -border suppliers of electronic transmissions and online platforms on revenue 
and profit generated in their territory, even if they do not  have a physical presence  there.  
 
The decision upon the moratorium on the imposition of customs duties  on electronic transmissions 
is dependent upon a clear understanding about the approach regarding taxation in the digital 
environment.  
SECTION  V 
Copyright  
1. Members shall ensure that authors and performers receive on a regular basis timely, adequate 
and sufficient information regarding the exploitation of their works and performances from those to 
whom they have licensed or transferred their rights, notably as  regards modes of exploitation, 
revenues generated and remuneration due.    
 
2. The obligation shall be proportionate and effective and shall ensure an appropriate level of 
transparency in every sector.   
 
3. The applicable legislation regarding copyright and rela ted rights in the digital environment 
shall be that from where content is accessed.  
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  4. Without prejudice to paragraph 3, Members reaffirm the application of Article 6 of the TRIPS 
Agreement with regard to the exhaustion of intellectual property rights.  
 
5. Members agree that exceptions and limitations provided for the analog environment under 
Article 13 of the TRIPS Agreement shall be carried forward and appropriately extended into the 
digital environment.  
 
6. It is further recognized the right of Members to de velop new exceptions and limitations to 
copyright and related rights appropriate to the digital environment, provided that they comply with 
Article 13.  
 
7. In case the relevant legislation provide protection against the circumvention of any effective 
technolo gical protection measures, Member s shall take appropriate measures to ensure that right 
holders make available to the beneficiary of an exception or limitation provided for in national law 
the means of benefiting from that exception or limitation, to the e xtent necessary to benefit from 
that exception or limitation and where that beneficiary has legal access to the protected work or 
subject -matter concerned.   
SECTION  VI 
Competition  
1. Members shall ensure that online platforms do not abuse their market position by restricting 
competition, either in the market where they are dominant or in separate markets , including 
upstream markets.  
 
2. Members shall ensure that online platforms do not abuse their market position by  giving 
arbitrary  or unjustifiable discriminatory advantages to their own services, products or apps.  
 
3. Members shall ensure that  online platforms  do not abuse their market position by making the 
use or access to specific services, goods or apps contingent upon the use or access to other specific 
services, goods or apps . 
SECTION  VII 
Consumer  protection  
1. Members recognize the importance of adopting and maintaining transparent and effective 
measures to protect consumers, inter alia, from fraudulent and misleading commercial practices 
when they engage in digital trade  transactions.  
 
2. To this end, Members  shall adopt or maintain measures that contribute to consumer trust, 
including measures that proscribe fraudulent and deceptive commercial practices. Such measure s 
shall, inter alia, provide for:  
 
(a) The right of consumers to clear and thorough information regard ing the service and its 
provider;   
 
(b) The obligation of traders to act in good faith and abide by honest market practices, including 
in response to questions by consumers;   
 
(c) The prohibition of charging consumers for services not requested or for a period in time not 
authorized by the consumer;   
 
(d) Access to redress for consumers to claim their rights, including as regards their right to 
remedies for services paid and not provided as agreed.  
 
3. Members  recognise the importance of cooperation between their respecti ve national consumer 
protection agencies or other relevant bodies on activities related to digital trade  in order to protect 
consumers and enhance consumer trust.   JOB/GC/203  
 
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  SECTION  VIII 
Regulatory Environment  
Prior Comment  
1. Each Member shall  provide , in a manner consistent with its domestic laws and regulations, 
opportunities and an appropriate time -period to interested parties to comment2 on proposed 
measures affecting digital trade.   
 
2. Each Member shall  seek to ensure , in a manner consistent with its domestic law s and 
regulations, that new or amended regulations measures affecting digital trade  are published and 
made electronically available as early as possible before their entry into force.   
Publication  
1. Each Member shall publish3 promptly and, except in emergency situations, at the latest by the 
time of their entry into force, all relevant measures of general application which pertain to or affect 
the operation of this Reference Paper . International agreements pertaining to or aff ecting trade in 
services to which a Member is a signatory shall also be published.   
 
2. Where publication as referred to in paragraph  1 is not practicable, such information shall be 
made otherwise publicly available.   
Notification  
1. Each Member shall promptly a nd at least annually inform the Council for Trade in Services of 
the introduction of any new, or any changes to existing, laws, regulations or administrative 
guidelines which significantly affect trade in services covered by its specific commitments under this 
Reference Paper . 
2. Each Member shall respond promptly to all requests by any other Member for specific 
information on any of its measures of general application or international agreements within the 
meaning of paragraph  1. Each Member shall also establish one or more enquiry points to provide 
specific information to other Members, upon request, on all such matters as well as those subject to 
the notification requirement in paragraph  1.  
Paperless  trading  
Each Member shall endeavour to:  
 
(a) Make trade administration documents available to the public in electronic form; and  
 
(b) Accept trade administration documents submitted electronically as the legal equivalent of 
the paper version of those documents.  
Principle of no prior authorization  
1. Members shall ensure that the supply of services by electronic means are not subject to prior 
authorisation.  
 
2. Paragraph  1 is without prejudice to authorisation schemes which are not specifically and 
exclusively targeted at services provided by electronic means, an d to rules in the field of 
telecommunications  and financial services .  
                                                
2 The submission of suggestions or comments does not oblige competent authorities  to accept them, in 
whole or in part. All suggestions and comments received shall be analysed and do not require any individualized 
response or reaction. Competent authorities  are solely responsible for deciding whether any or all of the 
suggestions or com ments received shall be used in full or in part.  
3 "Publish"  means to include in an official publication, such as an official journal, or on an official website.  
Members are encouraged to consolidate electronic publications into a single portal.  JOB/GC/203  
 
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  Cooperation on regulatory issues  
1. Members  shall maintain cooperation and dialogue on the regulatory issues raised by digital 
trade  on the basis of  mutually agreed terms and conditions, which shall address, inter alia, the 
following issues:  
 
(a) The recognition and facilitation of interoperable cross -border electronic signature and 
authentication services;   
 
(b) Cross-border transfer of information by electronic means;   
 
(c) The liability of intermediary service providers with respect to the transmission or storage of 
information;  
 
(d) The treatment of direct marketing  communications;   
 
(e) The protection of consumers in the ambit of digital trade ; 
 
(f) Cybersecurity;  
 
(g) Methodologies to measure digital trade flows, including cross -border;  
 
(h) The promotion of paperless trading;  
 
(i) The promotion of digital trade  by micro, small and medium sized enterprises; and  
 
(j) Any other issue relevant to the development of digital trade . 
 
2. Such cooperation shall focus on exchange of information on the Members ’ respective 
legislation on these issues as well as on the implementation of such legislation.  
SECTION  IX 
Cross -Border Transfer of Information  by Electronic Means   
1. Members recognise that each Member may have its own regulatory requirements concerning 
the transfer of information by electronic means.  
 
2. Each Member shall allow the cross -border transfer of information by electronic means when 
this activity is for the conduct of the busines s. 
 
3. Nothing in this Article shall prevent a Member from adopting or maintaining measures 
inconsistent with paragraph 2 to achieve a public policy objective, provided that the measure is not 
applied in a manner which would constitute a means of arbitrary or  unjustifiable discrimination.  
 
4. Nothing in this article shall be construed to prevent the adoption or enforcement by any 
Member of measures necessary to:  
 
(a) Protect public morals or to maintain public order;   
 
(b) Secure the prevention of deceptive and fraudulent practices or to deal with the effects of a 
default on online contracts;  
 
(c) Protect the privacy of citizens, consumers and medical patients in relation to the processing 
and dissemination of personal data and the protection of confidentiality of in dividual records 
and accounts;  
 
(d) Ensure safety;  
 
(e) Cybersecurity;  
 
(f) Counteract and prevent terrorism; and  
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  (g) Fight and prevent violations of criminal law.  
 
5. Nothing in this article  shall be construed to require any Member to furnish any information, 
the disclosure of which it considers contrary to its essential security interests .  
 
6. Nothing in this article  shall be construed  to prevent any Member from taking any action which 
it cons iders necessary for the protection of its essential security interests:  
 
(a) relating to the supply of services as carried out directly or indirectly for the purpose of 
provisioning a military establishment;  
 
(b) relating to fissionable and fusionable materials or  the materials from which they are derived;  
 
(c) taken in time of war or other emergency in international relations; or  
 
7. Nothing in this article shall be construed to prevent any Member from taking any action in 
pursuance of its obligations under the United N ations Charter for the maintenance of international 
peace and security.  
SECTION X  
Cybersecurity  
1. Trade rules can ensure that governments build their capabilities to prevent and respond to 
cybersecurity incidents by adopting a risk -based approach to mitigating threats  that avoids trade -
restrictive and trade -distortive outcomes.   
 
SECTION XI  
Personal  Data Protection  
1. Each Member shall adopt or maintain a legal framework that provides for the protection of 
personal data of individuals .4 
 
2. In the development of its legal framework for the protection of personal data , each Member 
should take into account principles and guidelines of relevant international bodies.  
 
3. Each Member shall endeavour to adopt non -discriminatory practices in protecting  citizens, 
consumers and medical patients from personal information protection violations occurring within its 
jurisdiction.  
 
4. Each Member should publish information on personal data protections it provides to citizens, 
consumers and medical patients, incl uding how:  
 
(a) Individuals can pursue remedies; and  
 
(b) Business can comply with any legal requirements.  
 
5. Recognising that Members may take different legal approaches to personal data protection , 
each Member should encourage the development of mechanisms to promote compatibility between 
these different regimes.  
 
6. International transfer of personal data may be allowed in the following cases:  
 
(a) For countries or international organizations that provide a level of protection of personal 
data appropriate to the one provided for in the country where personal data is being sent 
from;  
 
(b) When the controller offers and demonstrates guarantees of complian ce with the principles, 
rights of the holder and the protection regime provided for in the country where personal 
data is being sent from;  
 
                                                
4 Personal  data of individuals means information related to identified or identifiable natural persons.  JOB/GC/203  
 
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  (c) Where the transfer is necessary for international legal cooperation between public  
intelligence, investigation and p rosecution, in accordance with appropriate instruments of 
international law;  
 
(d) When the transfer is necessary for the protection of the life or physical safety of the holder 
or of a third individual ; 
 
(e) When the transfer  is duly authorized by a national competent authority ; 
 
(f) When the transfer results in a commitment undertaken  in accordance with an international 
cooperation agreement;  
 
(g) When the transfer is necessary for the execution of public policy or legal attribution of the 
service  publicity;  or 
 
(h) When the holder has given specific and prominent consent for the transfer, with  prior 
information on the international character of the operation, clearly distinguishing this from 
other purposes . 
SECTION  XII 
Data protection by  design and default  
1. Competent authorities shall adopt safety, technical and administrative measures capable of 
protect personal data from unauthorized access and from accidental or unlawful situations of 
destruction, loss, alteration, communication or any form of inappropriate or illicit treatment.  
2. The measures referred to in paragraph 1 shall be observed from the design stage of the 
product or service to its execution . 
SECTION  XIII 
Jurisdiction  
1. The lack of national jurisdiction shall not be invoked to deny  access to information and data 
necessary to enforce national law.  
 
2. A provider of electronic communication service or remote computing service shall comply with 
the obligations set out in Members’ domestic law to preserve, backup, or disclose the contents of a 
wire or electronic communication and any record or other information pertaining to a customer or 
subscriber within such provider’s possession, custody, or control, regardless of whether such 
communication, record, or other information is located withi n or outside of the Member’s territory.  
SECTION  XIV 
Business trust and obligations  
1. Members shall ensure that sharing source code, trade secrets, or algorithms are not a 
condition for entering any national market . 
 
2. Members shall ensure that requirements regarding transfer technology, trade secrets, or other 
proprietary information are not a condition for entering any national market.   
 
3. Members shall not arbitrarily require the use of national technolog ies as a condition of market 
access .  
 
4. Members shall n ot arbitrarily require country -specific encryption standards nor arbitrarily 
restrict the use of specific encryption standards.   
 
5. Members shall ensure that online platforms are responsible for the personal data they store 
and manage.  
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  6. Members shall ensure  that the legal responsible for a web site is liable for advertising that 
breaks criminal law.  
 
7. Members shall ensure that online platforms are responsible to develop  mechanisms to avoid 
the dissemination of disinformation and fake news.  
 
8. Information and d ata collected by online platforms on a national basis may be subject to the 
exceptions provided for in section IX . 
 
 
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