Co-authored by Ron Andruff & Mark W. Datysgeld.

With 300+ sessions and over 7,800 participants from 158 countries across every time zone, RightsCon Online 2020 (July 27-31) demonstrated the importance of convening people worldwide to bring about positive changes in a time of crisis. The Dahdaleh Institute for Global Health Research (York University, Canada) organized a panel of diverse experts and academics (please see the Panel List at the end of this article) to discuss: Promoting human rights and access to safe medicines during pandemics: The critical role of Internet pharmacies

Over the last four years, we have been working within ICANN, RightsCon and the United Nations Internet Governance Forums to build out a set of standards and norms on the foundation established by the Brussels Principles. We’re seeking to clarify the governance and jurisdictional issues in a human rights context that promotes the good actors while rooting out the rogues, using a balanced approach to global access to safe medicines purchased from Internet pharmacies. This is consistent with the 2017 U.N. Human Rights Council Resolution for ”[...] the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including access to essential medicines”. The Brussels Principles on the Sale of Medicines over the Internet” were developed by a coalition of stakeholders, Internet experts, and civil society at RightsCon Brussels 2017; and subsequently adopted at RightsCon Toronto 2018. At this most extraordinary time, we were happy to be back working with Access Now and the global rights community to continue this critical conversation.

Our main question is whether standards and norms should be advanced at the inter-governmental level through the arduous process of harmonization of trans-national laws, or whether they are best achieved at the Internet governance level, such as through ICANN policy development. What lessons can be drawn from other industry sectors? And, notably, who is the convener of such important work? Should this issue be raised to the agenda of international institutions such as the World Health Organization?

As panelist Dr. Jillian Clare Kohler rightfully stated, before the pandemic, the question of fair pricing of medicines was already a complex issue, and now that issue has been exponentially compounded. Corruption, Dr. Kohler noted, is the abuse of trusted power for private gain, and it finds its way into these situations. The proliferation of fake medicines has been strongly linked with disturbances such as supply disruption and fear-mongering, which could escalate matters in the context of a poorly coordinated, unfair distribution of potential vaccines and medicines against COVID-19.

Panelist Dr. Aria Ilyad Ahmad, who presented his seminal paper “Digital Governance of Public Health: Towards a Regulatory Framework for Internet Pharmacies” at IGF Berlin 2019, invited stakeholders to consider what are the applicable international human rights norms; where do moral and jurisdictional interests intersect (and clash); and, in particular, which institutions have the mandate and legitimacy to set standards and guidelines.

Exploring legal and regulatory approaches that advance the right to health while confronting the risks posed by rogue Internet marketplaces, further exposed vulnerable communities being disproportionately impacted by the virus, and the surging demand on health systems, which has contributed to critical shortages in access to care.

Dr. Oki Olufuye brought the Global South perspective, focused on Nigeria, asking if there is really justification for medicine price discrepancies between different countries. Africa not only suffers from a lack of access to the Internet (just 47% of Nigeria’s population of 200 million are online), it also lacks access to a safe, public health infrastructure—both off- and online. She noted that medicine can be bought by the pill without prescription, sometimes in settings as informal as on a bus. Long queues in hospitals force people to go to pharmacies for their general care instead. As Dr. Olufuye puts it: “Accessibility—in every way you think of it—is the challenge in the Global South.” It is not difficult to see how fair access to the Internet, combined with safe Internet pharmacies, could advance progress in public health and basic human rights.

Relative to the nature of the complex jurisdictional challenges, panelist Bertrand de la Chapelle declared that important lessons can be gleaned from the earlier free-for-alls around multimedia distribution over the Internet, with the industry initially fighting costly battles against file-sharing software such as Napster and its users. Only through cooperation and the creation of fairly priced services for film and music streaming was an appropriate compromise achieved.

Mr. de la Chapelle noted that any action taken at the Domain Name System (DNS) level acts as a very blunt tool, so it needs to be scoped with precision to be effective. Medicines are naturally regulated due to their risk of harm, often at the national/regional level. The jurisdictional challenge arises when a pharmacy is legal in one jurisdiction, but accessible and necessary in another; blocking it at the DNS level creates problems for all involved parties.

That notwithstanding, there are thousands of illegitimate rogue actors gaming the DNS, and all panelists agreed that they must be shut down. Current measures appear to be solely focused on denouncing all Internet pharmacies irrespective of those safe, licensed pharmacies, rather than establishing a set of multi-stakeholder-developed safety standards and norms to enable appropriate trans-national access. Reaching that precise balance is a mission that the global governance community needs to undertake.

These questions, taken together, are fundamentally a human rights issue, which brings with it questions of licensing, distribution channels, and trans-national recognition. There is a need for a multi-stakeholder initiative to discuss the possible ways to enable access to legitimate medicines across borders, in a transparent manner that avoids corruption. This is particularly important considering potential future pandemics or other situations of global health vulnerability.

Invited to intervene from the audience, Tim Smith, Executive Director of the Canadian International Pharmacy Association, explained that despite their extensive membership criteria and safety and privacy protocols, as well as a policy of not selling controlled substances such as narcotics or opioids, the Internet pharmacy association continues to face barriers. Not from patients, but barriers imposed by search engines to organic searches and online advertising, and even access to the top level domain “.pharmacy,” which is controlled by a U.S. trade association. To this last point, Mr. de la Chapelle added that the “.pharmacy” Registry Operator is subject to U.S. law; bringing in to question whether or not that TLD could potentially be considered an appropriate Internet pharmacy accreditation mechanism.

A recurring multi-stakeholder model challenge is actors pointing to each other’s deficiencies, rather than acknowledging the common problems they share. In this case, all of the legitimate actors face the same challenge of dealing with the thousands of rogue actors who exacerbate the problems of access to safe medicines. With COVID-19 casting a long shadow on the shrinking global economy, all of the panelists agreed that the time to engage the multi-stakeholder model to make real the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including access to essential medicines, is now; so this discussion will continue at the IGF Online 2020 in the session “Pandemics & Access to Medicines Over the Internet: A 2020 Assessment.” If this topic has captured your interest, please watch for future announcements. We welcome broad multi-stakeholder participation.

Finally, when we asked the 275 participants who attended our RightsCon panel discussion: “Are standards and norms best accomplished at the inter-governmental level or rather at the Internet governance level?” the poll reported 65% believe that this is an Internet governance issue, relative to 35% who felt it is a trans-national governmental issue.

Good food for thought.

RightsCon 2020 Panel List

Aria Ilyad Ahmad: Global Health Foresighting Research Fellow, Dahdaleh Institute for Global Health Research

Jillian Clare Kohler: Professor, Munk School of Global Affairs and Public Policy; Director, WHO CC for Governance, Transparency and Accountability in the Pharmaceutical Sector

Bertrand de la Chapelle: Executive Director, Internet & Jurisdiction Policy Network

Oki Olufuye: Health Manager, Consultant; Teraputik Konsulting

Pat Kane: Senior Vice President, Verisign Naming and Registry Services [Unable to participate]

Ron Andruff: President, ONR Consulting, Inc. [Moderator]

Mark W. Datysgeld: Internet Governance and Policies consultant, Governance Primer [Online Coordinator]