11月23日-24日，“2015北大-牛津-斯坦福互联网法律与政策研讨会”在牛津大学召开，腾讯公司副总裁、总法律顾问Brent Irvin （艾文博）致辞并发表了主旨演讲。
█ 原则一： 了解技术
█ 原则二： 仔细思考法律的域外适用
█ 原则三： 不是所有“破坏”都是坏的
█ 原则四： 谨慎使用竞争法
█ 原则五： 别让政策吞噬法律
Innovation and Regulation
You know what I am gonna talk about today. To be honest, it is always a little constrained, because you a general counsellor for a public company. You don’t completely speak all your views. I would not say it is that constrained, but I would say it is a little bit challenge. People would say the general counsellor of tencent say that. When you are in a different setting, and say controversial stuff, you can take positions. I am trying to get into a little bit substance this time. The topic I want to talk about is innovation and regulation. All these amazing things the internet company are doing really have big impact on these people. Traditionally, there is honey-moon period. But now there is nuance, there is good and bad. People try to figure out how to respond to those problems. But I don’t have the answers either. Neither do you. People seem to be confident about how these problems could be solved, such as politicians, regulators and academics. However, I think people should be more humble when talking about these issues. I am not giving the answers, neither suggestions.
I have a quick overview about Tencent. We have, of course, social products, entertainment products and tools like app store, security and etc. I don’t want to spend a lot of time on this, but I just want to include this for those who may not be familiar with what we do. I want to include this chart. It has some relevance to some of the topics I am gonna touch upon later. Tencent is the biggest internet company in the world by market capital. As you can see here are companies you all know, mostly American companies. But you can see four of them are Chinese. I think that touches a little bit of something I want address later about the way national regulator should think about the externality or external effects that some of them are trying to do. And the world is changing. I think you are gonna see more and more companies from different part of the world later this year and in the future.
I would like to talk about the good and bad of the internet today. There are a lot of things we have discussed, especially in the early panel. You have smart phone, and people could talk about mobile banking in Africa. These are all very good things. Most people know that internet is good stuff, there is not the true controversial issue in most of the cases. I am gonna talk about the core businesses of what an internet company do. Even in the developed market, it may kind of rebut defensively that it is really in a material way making people’s life more productive and more useful. You know payment and banking. I am not gonna spend lots of time on this. But you think about the way we live today. It is so much better and different than five years ago. You know if I want to pay for something, I can easily transfer money online. It is not a problem. You can rent home from people working in other countries. It is so significant that these are more convenient and efficient than it used to be. And I think that is a really important thing.
There are many social communication tools, such as WeChat, Skype and Facebook. I have been lived in China in the 90s. I can get on WeChat group video to call my sisters and parents every Sunday morning so that they can see my daughter. I can do travelling now and say, hi, here is daddy. I can go on Facebook to see friends in the US who I could not get to see so much. I can post pictures and I can also see pictures of my friends and family. And these are actually meaningful and important things that at a very real level make your life better. People don’t always think that way, but for me, you just have to start with the understanding that this is important and it makes your life better.
Navigation and Transportation
I came to London on Friday. We have a game company mini-clip we bought earlier this year. They have headquarter in London. When I got out of the hotel, I just called an Uber and went there to attend the meeting. I don’t know people at London at all, you know I have just been there once before. I googled map and walked around, and found a coffee shop. I mean this is really a meaningful way that your life is better than it is used to be. I think it is important to recognize this.
And about government services, I think we have talked a lot about it. I am not going into it here. The panel this morning addressed it. Efficiency of services is obvious. You know there can be lots of political debates on right role of government all of that. What the government does, they should do it as efficiently as possible. Internet is bringing that into reality closer than it was before.
Knowledge and Discovery
Another good aspect of the internet is knowledge and discovery. When I prepare for the speech, I can go online and google anything. I think that is a really big deal that people sometimes forget. You have the ability to access to and discover information. These are different options, such as Wikipedia.
The good of the internet also includes online commerce. I can buy stuff easily on eBay and Amazon, and on Alibaba and JD.com if I am in China. I can have access to content, movies, music, Spotify, QQ music and things like that. These are the things that really make my life materially better.
However, I think if you look at the way people live today, there are downsides, and I am gonna getting into those. But I want to start with my personal belief today that people should recognize that really important improvements of our life today are primarily driven by internet companies.
This is a little example of the functions of WeChat. Jason kind of showed a bit before. This is sort of a concrete example on how much you can do with just one app actually. These are screenshots from my WeChat day of my life. I got my chat right there. Cherry is my assistant, and I am always bugging her for stuff. And public accounts, media can send news to me. I can choose whether I want to read it. I can have a social feed there. I can see my friends’ pictures and I can comment. I can play video games. I can use the e-services provided by government. I can charge my cellphone, pay bills, I can get to charity and all sorts of things, just by clicking the button. Finally, there are shopping I can all do. This is not like solving world-hunger, but I do think these things that at a real level make people’s life much better. This is relevant to the regulations and policy which I am gonna get to.
This is an example from China, this is a guy who is selling sweet potato on the street. You got a little sign there, he basically say that you could us wexin payment or alipay. All in all, it is bringing improvements to lots of people. There are the good.
█ Bad Aspects of Internet
There is bad too. There is no doubt about it. There is certain complexity. What are the problems? You got privacy issues. As your life becomes more and more digital, there is more and more information about you out there. There are really tough issues on how to handle that. There are also security issues. I am gonna talk about it a bit.
There are companies that are got hacked, and things like that. There are also issues about what the proper role the government should play and what kind of access the government should have to your information. So those are some of the very tough issues as well. Finally, I think there are three big dislocations. You know there is dislocation of traditional business that have been impacted by internet companies. There is dislocation of jobs and market entry, sort of the idea that internet is eating the world. For example, software starts to take lawyers’ jobs. Finally, dislocation of communities. This may come a bit from the Bay area, but I think it is true in other places. So much wealth has been created by some of the companies. It is changing the community. You have to realize that those are the bad things that I came up with at a broader level.
So we’ve got good and bad. I don’t get the answers, but I don’t know everybody got the answers either. I do have some suggestions that people could think about as they are thinking about these issues. Before I got into the details of these principles, I think there are two threshold questions. Clearly you weigh whether the good and bad are gonna influence whether you think the principles are good or bad. I am clearly on the side that the good outweighs the bad. I think the good is much greater than the bad. If you don’t agree with that, you are probably not gonna agree with most of my principles. Also, I have my cultural background. Countries are at their own level of development. Maybe Germans care much more about privacy than others. China is at a different level of development than other countries. There are differences. So again, it is gonna influence whether you think my principles are good or bad. You know I think it is just important to get those concepts out there. So what are my principles?
█ Principle I: Get to Know Technology
In some cases, the people involved in legislation process don’t really know what they are talking about in terms of technology and things like that. Maybe that is a little bit stronger when you look at the debate about “encryptions” and “backdoors”. The people who are trying to pass the law are terribly sophisticated about what “backdoors” mean. Therefore, lawyers and rule makers should know the underlying technology as much as they can, so they could make smart decisions.
█ Principle II: Think Carefully about Extraterritoriality
This is a tricky one. I don’t think extraterritoriality is the right word. I can speak of it best through an example. US regulation seems to presume on the idea that leading internet companies are always Americans. That’s why I should chart about the market capital. So if you look at the Snowden or Microsoft case, it seems to be an underlying principle. I see Microsoft servers all over the world even users are in Europe and Ireland, but they just assume that they are all American companies. They start to take that advantage. You got some Scandinavian and Chinese companies, Brazilian companies.
By contrast, look at EU, I am an American, I work in China, and don’t know much about the EU, but we do follow things as professionals. It seems to me that EU is so focused on their principles, and you know they have this big market, if you want to play, you have to follow their rules. But what if European companies want to start to act outside of Europe, and you actually start to have European internet companies. They have the right to be forgotten, and they are gonna make the whole world to follow it. What if Thailand does that with their less majestic law? I just don’t believe that European regulators really believe in their heart that European companies are gonna ever do anything. In my belief, if they did believe, they might regulate differently.
Because the principles they are establishing are not gonna help European companies become truly successful on a global basis. I think in all cases, regulators should think of how to play a long game and think what they really trying to get into. Each country seems to be fixated on certain issues, maybe true today, may not true tomorrow. If we think more from the long term perspectives, we might come to different answers.
█ Principle III: Not All Disruptions Are Bad
We are talking about the three disruptions. There are clear problems, the cost of housing in the bay area, and there are lots of things. They are not insignificant. Some industries are getting replaced, and some people lose jobs, which needs to be addressed. In general, traditional industries that get disrupted are poorly operated industries. Getting a taxi in Beijing five years ago was a mess or in New York. I mean taxi is not an efficient business. There are reasons why Uber and DiDi are doing so well, because the traditional industry is very poorly run. The new services are much better, and make lives much easier and people are just happier because they have it. You know that’s a very obvious example, I talked about remittance before, that’s a huge industry. I think the number of money your workers remitting back to their home country is twice the level than global exchange .This is a huge thing, but it is a ripe-off. Traditionally, it is a ripe-off, where intermediary are taking huge cuts out of it, and taking money away from people at the lowest level of economic food chain. So now you have fin-tech companies and things that are coming in, they are disrupting traditional industries and they are also helping people. You know there are less controversies surrounding this one. In general, the industries that have been disrupted have been performed poorly at addressing the needs and wants of the consumers. Again, it does not mean you ignore that taxi drivers are losing their jobs. But you have to remember the starting point is that the taxi industry is really bad, and there were poor services, and there is a reason that Uber and DiDi were able to come in.
█ Principle IV: Modest Application of Competition Law
There is a little controversial one. I am not saying that competition law should not apply to internet companies. Clearly it should. For example, UK, as part of the EU has its own issues as well in China in terms of abuse of market power. All I am saying is that I have the principles, but I am not having the answers. People sometimes are so confident that they have the answers here, they say that this company clearly has a dominant market position, and know how to solve it, and now I am telling you how to do your user interface and all the stuff. If you look at the history of how these things play out, you know market solves it, not the regulators. I mean people are so worried about IE and its dominant position on desktop. When it comes to mobile, it is Chrome, not IE. Look at the history, be a little bit humbler here on how aggressive we are, and how certain we are. The market will make a decision. I don’t have an answer.
█ Principle V: Don’t Let Policy Overwhelm the Law
This is a trick one. Maybe I am a bit antiquated. But there are core principles of market economy which we all operate in. I feel like we have all the debate about privacy where people just think it is a simple issue. We are gonna make companies do that. Basically, when they provide services, they have the right to decide the terms.
But there are some exceptions. I don’t hear anybody talking about the simple fact of user agreements in terms of services. They are welcome to try something else. I am very clear that there are all sorts of laws that people don’t give enough weight when they are talking about those issues, because at the end of the day, you cannot vote with your feet or wallets. You are gonna give users and consumers a little bit credit, and if you really got them wrong, people won’t use that product. In the digital space, people are very quick to put that product aside. When you talk about policies and the way market economy works, please keep in mind that contract are generally respected, and there are exceptions. So don’t let policy overwhelm the law.