The Committee welcomes the planned steps forward in Taiwan’s digital economy this year, including establishment of the Ministry of Digital Affairs (MODA) and the drafting of the Digital Communication and Services Act. Because these are significant developments that could have a long- term impact on Taiwan’s digital ecosystem, it is critical for Taiwan’s authorities to provide clarity on the direction of digital industry promotion and to embrace sound governance standards. The Committee encourages the government to prepare a comprehensive and detailed digital transformation and promotion framework as soon as possible, including priorities and projected milestones for its most essential measures.
Suggestion 1: Harmonize regulations to create a consistent, cohesive, and digital-friendly regulatory environment.
This year is shaping up to be a watershed year for Taiwan in terms of encouraging digital transformation and focusing on the digital economy in earnest. The Committee is honored to assist in this effort to make Taiwan one of the world’s most business-friendly digital economies.
One of the key pillars of Taiwan’s digital ambitions is the formation of the new ministry, MODA, which will strive to boost Taiwan’s digital economy as one of its main objectives. At the same time, the government is also planning to introduce a Digital Communications and Services Act (DCSA), which can be expected to impose various regulatory restrictions on industry. It will be crucial to ensure that the major principles behind those regulations are consistent with the broader mission of building Taiwan’s digital economy as represented by MODA’s establishment.
Furthermore, considering the wide range of platforms operating in the digital space, including social media, retail, transportation, tourism, and logistics platforms, it is imperative that digital policy initiatives implemented by all relevant government agencies be harmonized. It is not a matter for MODA alone. Such harmonization is of particular importance in Taiwan, where the legal and regulatory environment is highly fragmented, with contradictory and ambiguous directives sometimes impeding efficiency and transparency. Government agencies will need to be equipped with resources to better understand how the digital economy
fits into their policy framework. The Committee therefore urges all relevant government agencies to engage with our digital economy businesses to together create a modernized digital ecosystem for Taiwan.
Suggestion 2: Include industry feedback and close regulatory gaps when drafting the DCSA.
The Committee commends the National Communications Commission (NCC) for undertaking the task of preparing the draft DCSA. The NCC has long reminded the public that the DCSA drafting process will heavily reference the wording and spirit of the EU’s Digital Services Act (DSA), which may include concepts pertaining to categories of digital communications intermediary service providers. For platform businesses that have been monitoring developments in the EU, a major concern is that the NCC’s overreliance on a yet-to-be enacted EU DSA will prevent companies from anticipating how they will be treated in Taiwan’s new regulatory environment. Preparation of the EU DSA has involved a multi-year process of in-depth dialogues, research, consultation, and deliberation. Without a similarly exhaustive process in Taiwan’s case, it is unclear what regulatory gaps in Taiwan’s current framework need addressing by the NCC through the DCSA.
As a foundation for the law, the Committee hopes that the NCC will fully leverage the existing efforts between industry and civil society to promote self-regulation and multistakeholder approaches that bring together a broad range of voices from the technical community, civil society, private industry, and government. Such efforts have been underway for years and have steadily grown in scale.
Furthermore, the OECD has identified a number of advantages to self-regulation. First, rules made by those who will be affected by them are more likely to be effective. Second, a self-regulatory body can alter regulations more efficiently, allowing it to adapt more quickly to problems and new developments. Third, because the costs associated with self-regulation are borne by the regulated, those shouldered by the government are minimal. As a result, self-regulation improves administrative efficiency in general. The Committee also agrees that applying a multistakeholder approach can: 1) meet the aims of the legislation, 2) be informed by expertise and practice, 3) result in clearer and more consistent industry- wide efforts, and 4) evolve quickly to respond to new threats.
As Taiwan analyzes perceived and actual regulatory gaps in self-regulation and co-regulation systems, the Committee is concerned that the NCC may not be sufficiently acknowledging the value of these partnerships. We therefore recommend that in drafting the DCSA, the government holistically examine recent developments in Taiwan, including how the government and businesses have collaborated to protect important democratic values and principles during the COVID-19 pandemic as well as major social and political
events such as elections and referendums; how industries’ current self-regulation and user policies and community guidelines have helped create a safer environment; how businesses and civil society have made joint efforts on media and digital literacy in Taiwan; and how companies have understood and appreciated the role of government as partners. These developments all occurred without additional legislation. All of them reflect international best practices.
Suggestion 3: Incorporate fairness and cost-benefit principles in the TFTC’s White Paper on Competition Policy in the Digital Economy.
Digital platforms have given consumers in Taiwan access to a wealth of information, while digital products have become ubiquitous in Taiwan and globally. The Committee supports initiatives in Taiwan to enhance competition and innovation while also ensuring that the digital economy is safe and effective for consumers and businesses, given that many of the products and services offered online are utilized daily. The Taiwan Fair Trade Commission (TFTC) recently released the initial draft of its White Paper on Competition Policy in the Digital Economy. The Committee recommends and endorses the following principles in developing a new competition regulation framework:
Promote competition and innovation by undertaking a thorough cost-benefit analysis when considering new regulations, to ensure the benefits outweigh any disadvantages for consumers.
Ensure that competition laws are based on clear evidence of regulatory gaps while abiding by the suggested principle above to encourage competition and innovation.
Ensure that any new regulations prevent competitive harm while permitting evidence-based justifications to minimize the risk of outlawing procompetitive conduct.
Assert that any new regulation is proportionate to the harm it seeks to address.
Accompany any new regulation with sufficient due process safeguards. These include the right of the defendant firm to justify its conduct (for example, on the basis that user benefits outweigh alleged anticompetitive effects), full rights of appeal and review, and the right to review the evidence and the case brought against the company.
Balance local conditions and international considerations. Bear in mind that each jurisdiction is unique, and new regulations that merely mimic other countries’ approaches may be unsuitable for Taiwan.
Competition policy and enforcement should adopt an issues-driven, analytical approach to maintaining the competitiveness of digital markets and balance careful consideration of Taiwanese market characteristics and international regulatory experience.
Suggestion 4: Digitalize key economic and finance- related data and modernize the distribution process.
The Committee requests that government agencies responsible for critical economic and market data (including the Directorate General of Budget, Accounting and Statistics, the Ministry of Economic Affairs, the Ministry of Finance, and the Central Bank) make all data available on their websites before announcing it in any other way. Adhering to a digital-first strategy for data would align Taiwan with international best practices and significantly improve data security and market transparency while also allowing for greater innovation. Releasing market-sensitive data by handing out paper printouts or via a “paper flip” is unfit for a modern economy, as it places undue stress on all parties involved and significantly increases the risk of damaging data leaks and errors.
Suggestion 5: Ensure fair industry representation during policy deliberation processes.
The Committee would like to remind the government that only business enterprises and organizations can adequately represent industry in communications with the authorities. We feel the need to offer this reminder because of recent instances in which digital platform businesses were not given the opportunity to fully communicate their concerns during policy deliberations on issues closely associated with industry practices. In those instances, agencies or organizations without practical experience in implementation were deemed sufficient to speak on behalf of foreign platform businesses. In other situations, sudden invitations resulted in platform businesses having insufficient time to adequately prepare feedback, which reduced the effectiveness of industry participation. In some unfortunate cases, once the policy has been made without input from industry, platform businesses have been left without legitimate recourse to further communicate with the administrative agency during the typical policy process. Once past the administrative deliberation process, even a large industry group such as AmCham is powerless to meaningfully assist companies in navigating these delicate situations. Constructive communication has no shortcuts, and industry representatives are always willing to provide their perspectives as long as there is a fair and open deliberation process.
The Committee therefore recommends the following:
Ensure that government agencies invite industry representatives to participate in key policy discussions that involve implementation of those policies by businesses.
Invite industry participation early in the discussion process or provide sufficient time for industry to ensure that participants can prepare thoroughly and respond to requests.
Provide English-language background materials where possible to facilitate foreign-invested companies’ consultation with their headquarters and/or regional offices.
Ensure at least a minimum 60-day comment period for all draft laws and its subsequent edits, meeting international standards.
此外，經濟合作暨發展組織 （Organization for Economic Cooperation and Development, OECD）就自律模式的解釋與好處說明如下： 「自律管制有許多優點。首先，由於規則的制定者與適用者為同一對象，且規範的是一種精神而非法律條文，預期將有更佳效果。其次，自律機構可較政府更快改寫相關規則，因而更靈活應對相關問題與嶄新發展。最後，自律管制對於政府而言成本較低，因被監管者將承擔監管成本。因此，就行政效率而言，政府可從自律管制模式中獲益良多。」委員會也認同推行多方利益關係人模式將符合立法目標，亦可透過專業經驗與實務操作累積知識，產生更清晰且一致性高的整體產業行動，並可快速演變以應對新的威脅。