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Can We Advance Policies Towards a Safe Transnational Internet Market for Medicines?

Note: This article focuses on key points raised during Workshop #116 of the UN's 2020 Internet Governance Forum: "Pandemics & Access to Medicines: A 2020 Assessment". For a more in-depth review of the themes noted below, please watch the complete video of the IGF Workshop here.

Co-written by Mark Datysgeld and Ron Andruff

As 2020 draws to a close, it becomes possible to assess the trends from different policy areas that were most impacted by the global pandemic, with health-related policies rising to the top of that list. This article focuses on the sale of medicines using the Internet, as it should, without a doubt, be one of the leading concerns of both the general public and policymakers. There is a disconcerting lack of broader social debate around the subject, even though the need is so great.

As discussed in a previous Circle ID article, had there been proven effective treatments to prevent or fight COVID-19 from the get-go, the rush to buy them would have been unparalleled. What would guarantee access to the medicines? Which rules would govern their sale? Would citizens be limited to buying from potentially understocked home markets or would exemptions be put in place to enable them to import from trusted foreign suppliers? These are questions that remain open, with no clear norms having been advanced within the United Nations environment or elsewhere to address them.

This results in a digital market that neither fully exists, nor does it not exist. In this space, good actors are hampered from pursuing safe, innovative strategies to drive global competition, yet the lack of established overarching norms ends up allowing rogue actors to have the freedom to cause significant harm the world over. Rogue actors thrive on the loopholes found across various jurisdictions, and exploit the information asymmetry around medicines, their cost, and their efficacy; overwhelming the online market with sub-standard products.

Maintaining this status quo contributes significantly to an estimated 8 million individuals dying each year from preventable causes, which roughly corresponds to one out of five or six deaths in the world. Meanwhile, an estimated 2 billion people lack access to essential medicines, generating needless suffering, disabilities, and a shortening of life expectancy. These assessments predate the COVID-19 pandemic.

Today, society remains at a loss as to what a "new normal" will ideally look like, though we collectively understand that there is a need to move toward a set of general agreements that, were something of this nature to happen again, would spare us from having our entire social fabric torn apart once more. At the end of the day, health has proven to be the one factor that truly forces the hands of all global markets and societies, more than any of the many financial crises the world has experienced over the past century.

In fairness, it's not as if there is no reason for this collective inaction to date. Bertrand de la Chapelle raised the point during "Pandemics & Access to Medicines: A 2020 Assessment” of just how regulated the medicines market have been at the nation state level, due to what he identifies as a triangle that needs to be balanced when we confront jurisdictional challenges of this magnitude: Human Rights, public safety (which can be considered as an extension of Human Rights under certain contexts), and economic concerns.

From the Human Rights perspective, the outlook is quite clear: no person should die from diseases that have a treatment. This is not a difficult point to conceptualize and we can assume there to be a more or less general agreement on this within society. How to actually make this happen is an entirely different matter; but as far as ideals go, we can accept this vision as the default.

However, the question of public safety is a real one. Substandard and falsified medicines (find out about the differences here) pose a threat to our collective well-being, with the World Health Organization (WHO) estimating that 1 in 10 medical products in low- and middle-income countries belongs to this category. That is the same as saying that roughly 10% of the people in these countries end up with medical products that may harm or kill them instead of helping treat their ailments. The need for strict control over which are the safe medicines, including the chain of custody, is real.

The question of economic concerns remains the murkiest one, as there are several variables to take into account. The global pharmaceutical industry invests a great deal of resources in the discovery of drugs, their clinical trials, and end up absorbing the losses that come with failed medicines. However, it should be equally noted that these investments are often significantly offset through foundational research performed by universities and public health institutions, which themselves contribute a great deal towards medical innovation. It is also consistent that, in pricing medicines, this industry targets each market to obtain as much profit as a region's system and economy allows, with the price of many medicines varying widely in different (often neighboring) countries.

The pharmaceutical industry should not work pro bono. They should reap the just rewards for what is certainly a lot of extenuating, complex work. But the reality is that medications make upwards of 70% of health care costs in developing countries, which is not an acceptable situation. The pricing practices that are in place today do not correspond to rewarding the risks incurred in drug development, outweighing those in the long run. A free market in which a medicine's manufacturing quality could be attested according to global standards and trusted by consumers would be more in line with the immediate need that exists for greater access to these life-saving products.

There is need to stress the situation of medicines in developing nations, since, as pointed out by MENA region health expert Zina Hany, their governments often spend a substantial portion of the available overall budget on healthcare, and yet, unfortunately, their systems comparatively lag behind in efficiency due to high maintenance expenses. By way of example, drug prices in the USA may vary by as much as hundreds of dollars in relation to its neighbor Canada, but this pattern can also be observed in the MENA region, where even within a context of less regional wealth there is still significant price differentiation being carried out.

When these matters are considered in the whole, there is a key question posed by Dr. Aria Ilyad Ahmad that is the next logical step in the discussion: who would be a legitimate convener for the dialogue to arrive at these much-needed norms? From an objective standpoint, the WHO would seem to be the appropriate venue, but the fact of the matter is that practical knowledge about the technical aspects of the Internet and its operation, multistakeholder processes, and other knowledge in this vein might be less than desired within the institution.

Could the Internet Governance ecosystem be the space to advance this theme? Possibly. It is clear that this discussion involves both issues with an impact on the Internet's technical infrastructure and around that infrastructure. Technical bodies, jurisdiction and policy-focused institutions would all need to engage in the effort of generating comprehensive norms in order to achieve the best possible outcomes. Bringing in exogenous actors and making an effort to educate and establish dialogue with them would also go a long way towards achieving progress in an intricate area such as health.

The IGF itself has served as a neutral forum where such conversations can be (and have been) advanced. But now there is need for a permanent locus where the intersection between medicine and the Internet can be addressed, and discussions can be advanced at a pace that reflects the speed with which this recurring theme is intensifying in importance. Looking toward the future, the IGF Plus project would seem to couple well with this goal and even though it is not entirely yet clear how that body will be structured, it remains a potential home for the development of recommendations for global norms.

One arena within which these questions can be legitimately advanced is ICANN, where work that has been done at the Internet & Jurisdiction Policy Network and within the Domain Name Association has been reflected in the voluntary DNS Abuse Framework, which incorporates provisions to tackle websites dedicated to the sale of illegal opioids. While it would not necessarily be a "silver bullet," the further deepening of the relationship between the global policymaking community and the ICANN contracted parties would facilitate the creation of more objective norms regarding the sale of legitimate medicines using the Internet, while at the same time combating rogue actors. This would be a valuable start to enable ground rules to be set.

Research into these subjects is ongoing and, in some ways, still incipient. The production of evidence-based material to enable decision-making in relation to the establishment of a safe transnational Internet market for medicines started to really emerge in the 2010s, and has been picking up strength ever since. The time is ripe for the IG community to pay more attention to this emergent issue, and to make it more present in our collective efforts to improve the Internet space and further its role as a tool to generate well-being and decrease inequalities.

There is a cost to inaction that may be hard to perceive, but it is there and it is growing. The more delay there is in finding a way forward, the farther away the policymaking community will be from being able to agree on norms that can generate common good and further this cause in a meaningful way. First of all, though, is understanding that there is a very real role for the Internet Governance community in generating this change.

By Mark Datysgeld, GNSO Councilor at ICANN

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