South Centre at UNCTAD e-week: a summary of the sessions on digital health, digital governance fragmentation and the global digital compact

During the United Nations Conference on Trade and Development (UNCTAD) e-Week, held from 4-8 December 2023 in Geneva, the South Centre organized several sessions, and its staff took part in a series of events as speakers and held bilateral discussions with other organizations. The South Centre is a member of the UNCTAD eTrade for all initiative and is engaged in various activities on e-commerce and the digital transformation.

Global digital governance is fragmented and often not sufficiently inclusive of development considerations and the perspectives of stakeholders from the Global South. Meanwhile, technology companies from high-income countries can unduly influence national policies and the international agenda. Many issues, such as preserving competition within the realm of the digital economy, the regulation of artificial intelligence (AI) and digital platforms, and the dissemination of digital health tools, pose new challenges for developing countries.

As the formal negotiations towards a global digital compact (GDC) begin – with a tight schedule for approval in September 2024 –, the South Centre has recently published a Research Paper on “The Global Digital Compact: opportunities and challenges for developing countries in a fragmented digital space”.

Below is a summary of the sessions organized by the South Centre and sessions in which the South Centre’s Executive Director and staff participated, with a focus on the sessions on digital health and the fragmentation of digital governance in the light of the proposed Global Digital Compact and digital trade rules.

I. The role of partnership for a more inclusive and sustainable digital future

On 5 December 2023, South Centre’s Executive Director, Dr. Carlos Correa, was a speaker at the high-level UNCTAD eTrade for all leadership roundtable on the topic “The role of partnership for a more inclusive and sustainable digital future”. He mentioned South Centre’s mandate and work on digital affairs, and the main challenges faced by the Global South, with a focus on the reform of the international tax system – in which the issue of taxation of the digital economy, particularly the major tech conglomerates based in the Global North, is paramount.

II. Digital health at the crossroads of human rights, AI governance and digital trade

On 6 December 2023, the South Centre and the Brazilian Institute for Consumer Protection (Idec) co-organized a panel on “Digital health at the crossroads of human rights, AI governance and digital trade”. The session bridged various discussions which are often made separately but require a more comprehensive approach. It did so by contrasting concrete examples from Brazil and India, as well as discussing broader ongoing debates at the multilateral level.

Dr. Viviana Muñoz, Coordinator, Health, Intellectual Property and Biodiversity Programme (HIPB), South Centre, acted as moderator. In her opening remarks, she noted that digital health technologies have great potential to improve the efficiency and effectiveness of health systems worldwide. However, she added, the digital gap and the lack of access to the Internet or high-speed broadband need to be addressed, since this creates important barriers to digital health services. Accordingly, she raised the importance of equitable access, privacy and security concerns, taking into account the needs and context of each country.

Mr. Matheus Falcão, Alex Trebek Visiting Doctoral Student Fellow with the University of Ottawa AI + Society Initiative, and PhD Candidate at the University of São Paulo, Brazil, discussed the impact of technological innovation in health systems, focusing on the integration of artificial intelligence. Technological innovation has led to a significant transformation in health systems, particularly through advancements in data collection and the creation of large health data platforms, he said. These innovations have enabled the scaling up of data collection efforts, allowing the healthcare industry to gather comprehensive and diverse datasets. These efforts, however, raise various policy issues such as data privacy, control, and access to datasets.

Artificial intelligence has emerged as a powerful tool in healthcare, enhancing diagnosis, optimizing resource allocation, and predicting health outcomes. These advancements hold promise for improving healthcare delivery and patient outcomes. The use of artificial intelligence in health systems also raises concerns, including personal data protection, privacy, algorithm bias, and contextual bias. Current legal frameworks may not be equipped to address these challenges. Transforming and adapting legal frameworks to address governance issues related to AI in health is crucial, including safety, efficacy, and quality of AI in clinical settings.

Some countries are exploring the creation of public bodies to oversee data bias. Economic fairness concerns, such as the value of data, workforce impacts, and concentration of economic power resulting from unequal capacities to collect large amounts of data and data concentration, need to be considered. Regulatory capacities to monitor data usage, especially in the Global South, are necessary. Beyond personal data protection, the broader implications of data usage in healthcare innovation should be considered.

States have an important role in regulation, building public infrastructure, and developing regulatory capacities. Collective approaches to health data are advocated to ensure innovation benefits both users and the public system. It is essential to address human rights, governance, and economic fairness concerns to harness the full potential of technological innovation in improving health outcomes. Collaboration between States and the private sector is key to creating a market framework that promotes innovation while protecting societal interests.

Dr. Anita Gurumurthy, Executive Director, IT for Change, provided an analysis of a series of issues pertaining to digital health, with a spotlight on India. She referred to the advancement in the digitalization of public health in India and explained how the digital health infrastructure functions and how it is governed, including the role of individual Health ID numbers. India has made many strides. Problems of access and digital literacy remain. People could be denied access to government schemes on account of failure of biometric authentication. Considering that access to mobile phones and Internet persists as a problem in India, it is a priority issue to address.

Dr. Gurumurthy noted that the digital health system accumulates personal / health data such as prescriptions, diagnostic reports, and discharge summaries. She recommended advancing a comprehensive data protection law, providing guardrails to ensure data privacy, security and strong accountability / liability frameworks. She also noted that a new governmental system for telemedicine was established in 2019, as well as guidelines in 2020. She recommended advancing a consent framework, prevention of data leaks, limiting the duration for data retention and the further use of data, and detailing the responsibilities of telemedicine platforms to protect both medical service providers and patients, including with respect to the COVID-19 Vaccine Intelligence Network (CoWIN).

Dr. Gurumurthy provided an analysis of various Indian legislations on the governance of digital health data, including a proposed Health Data Retention Policy, a Health Data Management Policy, and an upcoming ‘Digital India Act’ that includes regulation of wearable technology. She mentioned the importance of discussing the commodification of health data and public infrastructure, in terms of risks and its potential benefits for public health and equity.

Dr. Gurumurthy also addressed in her presentation the interface between international trade in health services and how the promotion of cross border data flows is related to the protection and safeguard of patients’ data. Generally, commercial entities are of the view that less data protection facilitates services in health services (including medical tourism), but this also brings other challenges. This relates, for instance, to potentially sensitive health data being transferred to other countries without the consent of the concerned individuals. She noted how the European Union has developed a regulation to create a European Health Data Space and how at the European level parliamentary discussions have debated the need to ensure robust infrastructure and more safeguards for patients’ data. As such, for developing countries to create such common health data spaces, safeguards against commodification of health data are essential, particularly given the ‘data gold rush’ in which the private sector captures patient data, and then licenses access to such data.

Dr. Lucas Costa dos Anjos, Postdoc Researcher at Sciences Po – Paris, discussed the impact of digitalization on pricing strategies in the pharmaceutical sector and the associated data protection concerns. The main insights provided were:

• Algorithmic and Personalized Pricing: As the economy digitalizes, it becomes easier for companies to monitor and update prices, often on an individual basis. This is increasingly being managed by computers. Retailers are also delegating discounts and loyalty programs to third parties, raising questions about whom they share this data with.

• Pharmaceutical Industry and Customer Loyalty Programs: Personal data is being used in shopping patterns for personalized pricing of various products, including prescription drugs, hygiene products, birth control, and tests. Customers are generally not informed about how their personal data is used – a problem of transparency and how consent is obtained. The legal basis for the processing of personal data in the pharmaceutical sector is unclear and often problematic.

• Legal and Ethical Concerns: Are current practices fair and legal? There are potential violations of fundamental rights, such as data protection and privacy, and consent given in exchange for significant discounts may not be valid. The pharmaceutical sector’s lack of engagement in data protection compliance was also noted. There is need to advance ethical standards in medical innovation and respect fundamental rights, including privacy.

• Asymmetric Information Relationships: Asymmetric information relationships can lead to greater manipulation, behavioral modification, misinformation, and nudging of consumers.

Dr. Costa dos Anjos recommended greater scrutiny and regulation in the pharmaceutical sector to ensure that advancements in digital pricing strategies do not compromise consumer rights, and the development of data protection standards. As an example, the Brazilian Data Protection Authority launched in 2021 an investigation with the aim to ensure fair and transparent practices in this field.

Ms. Camila Leite Contri, Coordinator of Digital Rights at Idec – Brazilian Institute of Consumers Defense, explained concerns on the misuse of health data. She focused on the issues that the civil society advocates for in Brazil concerning digital health and the proposed solutions to the identified gaps and problems.

Brazil has a universal public health system complemented by a low-competitive private insurance market. The health sector is undergoing digitization; at the Ministry of Health, a new Secretary in Information and Digital Health was created while the proposed AI bill included health issues. Against this backdrop, civil society is particularly concerned with the following two issues:

1. The processing practices of health data by pharmacies, which are now currently being assessed by both the Brazilian Data Protection Authority (ANPD) and the Consumer Authority (Senacon), pursuant to Idec’s advocacy. She mentioned that concerns over this issue are growing since, as per a study by Idec, prices are inflated forcing people to give their data for artificial discounts.

2. The proposal of an open health system based on open banking, and health data interoperability: the former Brazilian Health Minister [until December 2022] proposed an open health system based on the principles of open banking. This raised the concern on the sharing of sensitive personal data, which could increase information asymmetry between consumers and health companies and increase the risk of profiling and screening, which could lead to discrimination.

Ms. Contri highlighted five goals, all focused on human rights, that should be used as solution strategies to these issues: (i) putting consumer at the center of policies, (ii) fighting against discrimination, (iii) ensuring proper data protection and security, (iv) adopting transparent policies and (iv) ensuring a democratic governance with the participation of civil society.

Accordingly, she concluded with three concrete recommendations: (i) the recognition of digital health technologies as public goods, that must be used in the public interest; (ii) the guarantee of basic rights, such as information, transparency, and security and (iii) limiting the exploitation of personal health data by the private sector.

III. Projecting digital economy rules on Global South’s AI regulations: what is needed to safeguard human rights?

On 6 December, Dr. Vitor Ido, Programme Officer, HIPB, South Centre, was a speaker at the session entitled “Projecting digital economy rules on Global South’s AI regulations: what is needed to safeguard human rights?”, co-organized by Data Privacy Brazil and Public Citizen (USA). The session focused primarily on the efforts by some countries via trade agreements and other bilateral frameworks, to create additional legal exclusivities over source codes and expand the protection for trade secrets. Dr. Ido alluded to the geopolitical background of these efforts, noting that the United States is targeting China specifically and unduly. This trend is problematic. It limits access to technologies and promotes further enclosures of knowledge and is not a justifiable form of regulation.

IV. Digital Space Accelerator Roundtable

On 7 December 2023, Dr. Viviana Muñoz, Programme Coordinator, HIPB, South Centre and Dr. Vitor Ido, Programme Officer, HIPB, South Centre, participated in the Digital Space Accelerator Roundtable organized by the Digital Cooperation Organization (DCO). Their interventions covered the topics of ‘ Guiding the strategic development of public-private partnerships to encourage smart investments in the digital economy’  and ‘What are digital rights and how do we protect them?’, with a focus on the protection of children’s rights online and the regulation of intellectual property rights for the digital economy.

The South Centre’s speakers made recommendations for developing country policy makers concerning the regulation of intellectual property rights for the digital economy, in particular to craft an enabling, context-specific and balanced legal framework that make use of the policy space available in international agreements, such as the WTO Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS Agreement). Such legislations should promote access to information, data and essential learning tools, recognize digital rights for users and creators of digital content, facilitate licensing of IPR, and support open, transparent and collaborative science.

V. Overcoming the fragmentation of digital governance: what role for the Global Digital Compact and e-trade rules?

On 7 December 2023, the South Centre, in collaboration with the University of St. Gallen, Switzerland, organized a panel on “Overcoming the fragmentation of the digital governance: what role for the Global Digital Compact and e-trade rules?”. The background of the session is the beginning of the negotiations of the global digital compact, and the need to ensure more policy dialogue among developing countries. The lack of transparency of the negotiation process, associated with the highly fragmented landscape of digital governance, contribute to marginalize the Global South in this important process.

The session was moderated by Ms. Isabella Bassani, Researcher at University of St. Gallen. In her opening remarks, she noted that fragmentation in digital governance has emerged as a significant concern, posing challenges to digital inclusiveness and policy convergence. Her presentation provided an overview of how the current patchwork of arenas and discussions lead to imbalances, and to a lack of coherence in digital governance. She described the process of the Global Digital Compact, expected to be approved in September 2024 at the Summit of the Future.

She highlighted the digital divide as a core global issue. She also noted the role of complexity of digital issues as an issue to be addressed in terms of how developing countries negotiate and strategize about digital governance. Ms. Bassani highlighted that fragmentation can also reinforce market power, and how it can be weaponized so that it impedes cooperation between arenas and issues. On the other hand, top-down solutions are inapt to solve global problems and unable to be attuned to local realities and perspectives, which reinforces the importance of a certain multi-stakeholder model that is not synonym with legitimizing market power.

Ms. Bassani also reflected on the role of trade agreements, which can potentially create a more unified and coordinated approach to digital governance, but also exacerbate disparities between countries. The current domination of Global North stakeholders and regulations needs to be changed, she concluded, and initiatives such as the Global Digital Compact can be an important step in that sense.

Dr. Burcu Kilic, Senior Fellow at Centre for International Governance Innovation, focused her presentation on the history of digital trade and how fragmentation in itself can be beneficial for countries (as it ensures policy space) and avoids the long history of attempts to impose norms on developing countries. This is also applicable to developed countries (countries such as South Korea and Australia have shown their own innovative regulatory models in digital governance).

She highlighted the high risk of more forums (which may include the Global Digital Compact) as a distraction, rather than the possibility of an effective policy outcome. In her view, the decisions and agreements at the World Trade Organization (WTO), given its teeth, will remain the most important for digital trade discussions. She also noted that technology and trade policies need to be aligned. The recent change in United States foreign trade policy was driven by the recognition of the increased need for technology regulation. The US withdrew its proposals in the WTO on free cross-border data flows, data localization and software source code. In addition, the risks of a ‘race to the bottom’ regulation is real: there is the notion that countries need to deregulate and minimize any form of intervention to create incentives for companies to enter the field, but this trend is a real problem that exacerbate the power of big technology platforms. The gap between proposals and real, effective solutions needs to be bridged.

In the area of trade agreements, she highlighted how digital chapters have been used to curb policy space of partner countries, which despite all odds remain trade-oriented (and not people-oriented). This trend justifies the skepticism towards such agreements as proper solutions to the current problems. Intellectual property in trade agreements (including but not only those related to digital trade) have served the purpose of limiting countries’ regulatory space–this was most evident in the field of access to medicines. Accordingly, each country should introduce and adopt regulations that are suitable to it, noting also that not all regulations are good or bad in themselves.

She acknowledged that over the last decades Internet governance debates and the issues of multi-stakeholderism have significantly changed. On the topic of data protection and privacy, the US and China have lower standards of protection compared to the EU, but changes are also ongoing in these jurisdictions. Achieving a balance in regulation is crucial and many of the lessons from other areas, such as trade agreements in IP in relation to access to medicines, need to be recalled.

Mr. Rao Mehroz Khan, Digital Trade Expert at Digital Cooperation Organization (DCO), discussed the potentials of the Global Digital Compact to maximize the use of digital technologies for the global good. He pointed to the issues of digital literacy, bridging the gender digital gap, the potential benefits of harmonization of digital procedures for small and medium-sized enterprises (SMEs), and the standardization of data protection laws, as well as interoperability between different areas and the issue of capacity building. He acknowledged the concerns about the influence of big tech platforms and what can be reasonably expected from the negotiations. He advocated for the need to create a fair and secure digital trade ecosystem for all and suggested that the Global Digital Compact can contribute to sustainable development and economic empowerment.

Dr. Vitor Ido, Programme Officer, HIPB, South Centre, provided an analysis of the current digital governance landscape, focusing on priorities for developing countries. He noted that the is a key entry point for global digital governance for developing countries, and that fragmentation and the multi-stakeholder character of most arenas are integral features of digital governance – the issue is, therefore, what should be the role of private companies. As key takeaways of the debate, he highlighted that regulatory issues (including trade, IP, data governance, digital rights, competition) need to be accounted for in the upcoming Global Digital Compact – although they are not currently part of the discussions – , and that the following could be prioritized: market power needs to be contained; digital rights must be enshrined; and digital and other divides need to be considered in the debates. The presentation was partly based on the South Centre publication “The Global Digital Compact: opportunities and challenges for developing countries in a fragmented digital space” (Research Paper 187, 2023).

Dr. Ido exemplified the current fragmentation by noting where digital governance is being currently negotiated or addressed. This includes the WTO and its plurilateral negotiations on e-commerce, WIPO’s bodies which debate new technologies, including AI, the recent adoption of the UNESCO’s Guidelines for regulating digital platforms: a multi-stakeholder approach to safeguarding freedom of expression and access to information, as well as ITU’s different bodies and fora, including the World Summit on Information Society (WSIS), the AI for Good annual conference, as well as the different discussions on technical standards and connectivity. This is complemented by multiple other fora, such as the Internet Governance Forum and various sectoral bodies (such as the WHO with respect to digital health). Navigating all such arenas is particularly difficult for developing countries’ officials, but can also be weaponized by companies and developed countries – i.e., they may adopt different, contradictory positions in distinct fora and undermine the arenas in which they are not interested in.

In addition, at the UN Secretary-General level, the proposal of the creation of an international AI agency, the recent appointment of a High-Level Advisory Body on AI, all alongside the Global Digital Compact process, add complexity and raise issues on which areas and arenas could be prioritized by developing countries’ delegations.

In light of this context, and in the efforts towards achieving more policy coherence, he noted the following points: (i) addressing digital gaps is a core concern for developing countries and this requires creating more spaces for dialogue between developing country delegates – the South Centre provides a platform; (ii) curb market power in multi-stakeholder processes; (iii) the Global Digital Compact  may be an opportunity to reshape digital governance –  but its outcome can also severely undermine other existing initiatives; (iv) more transparency of the ongoing processes is needed.

Author: Dr. Vitor Ido is Programme Officer of the Health, Intellectual Property and Biodiversity Programme (HIPB), South Centre.