An Introduction to Technology, Media, Telecoms (TMT)

2022 has been an exciting year for Digital/TMT/privacy lawyers in Taiwan jurisdiction and 2023 will continue to be a splendid one. In 2022, a new government agency was formed to regulate digital development and cybersecurity; freedom of speech and internet content regulation collided, so did privacy protection and medical developments; geopolitics risks accelerated the development of low earth orbit satellite networks. All these developments will continue to evolve and develop in 2023. In addition, challenges in the development of metaverse, crypto currency/virtual assets and artificial intelligence continue.

In August 2022 the Ministry of Digital Affairs (MODA) launched its operation and became the primary regulator for digital development and cybersecurity. The MODA aims to implement digital transformation of both the public and private sectors and to develop Taiwan’s digital economy. It is in charge of "electronic signature" related matters and will promote the free flow of non-personal data. As for cybersecurity, the MODA declared at the end of 2022 that given the prohibition of use of PRC software by Taiwan government agencies, social media platforms such as TikTok and Xiaohongshu are banned from being used on any governmental controlled devices or the premises of government agencies. As for whether the private sector will be subject to the same ban, the MODA stated that it will need to wait for the society to reach a consensus on such a ban.

The National Communications Commission (NCC) made several moves to further regulate internet content. It released a draft statute aiming to regulate the over-the-top (OTT) streaming business and block PRC OTT services. The NCC had planned to propose another statute to regulate electronic platforms by copying the model under the EU Digital Service Act, mainly aiming to regulate fake news and misinformation. Given the controversy of infringing online freedom of speech, the NCC suspended the proposal but is expected to continue with similar efforts. Despite such pause, statutes regulating election campaigns and commercials were proposed and statutes regulating internet content for the purpose of protecting children, minor and victims of sexual crimes were enacted at the end of 2022. Perhaps more will come in 2023.

The Fair Trade Commission (FTC) issued a white paper on digital economy with no specific direction as to whether to regulate large offshore e-platforms. One of the hot topics that the FTC was handling, ie, whether to require large e-platforms to share their advertising revenue with the local media and press, was transferred to the MODA which held several dialogue sessions for the local press to communicate with large offshore e-platforms. Such dialogue and negotiations will continue.

The Constitutional Court dropped a bombshell by rendering a milestone decision concerning the government's use of National Health Insurance data for research purposes. The Constitutional Court ruled that the existing statutes/regulations do not provide sufficient authorisation for the government to allow certain research institutions to use the National Health Insurance data for research purposes and urged the relevant regulators to propose amendments. It also opined that all anonymised data can be converted into personal data with extreme measures. How such decision of the Constitutional Court will affect the attempt of the primary regulators to promote free flow of data warrants close monitoring. Meanwhile, the National Development Council is proposing amendments to the existing personal data protection statute so as to adopt a framework similar to that under the EU General Data Protection Regulation ("GDPR") and to further facilitate free flow of anonymised or similar data.

The outbreak of the Russia-Ukrainian war and the raise of the Cross-Strait tension urged the Taiwan government to improve the resilience of the networks in Taiwan and to expedite the development and establishment of satellite communications networks. The MODA initiated the first wave of allocation of radio frequencies and accepted applications for frequencies for the establishment of low earth orbit satellite networks at the end of 2022. The MODA will accept such applications periodically in 2023. Meanwhile, the MODA plans to establish around 700 fixed-point or low-orbit satellite earth stations with mobile functions in 2023 and 2024 for emergency purposes so as to enhance cyber resilience and to keep the island's network in operation during nature disasters and in the event of a conflict.

The FTX incident shocked the crypto/virtual assets investors worldwide as well as the Taiwan regulator. The Financial Supervisory Commission announced that in addition to the existing anti-money laundering regulations on crypto assets, it will propose a regulatory framework to further regulate crypto/virtual assets so as to reduce the relevant risks and protect investors and consumers.

ChatGPT and the other AI tools for creation of art work, etc, caught the public’s attention worldwide, and it seems that the application of AI in our daily lives may become a reality. The Taiwan government has already spent much effort on fostering the development of AI technology and monitors global trends and developments of AI ethical standards and relevant laws and regulations. It may further decide whether to stipulate any ethical standards for AI technology development or to enact laws and regulations on the application of AI technology.

In 2023, values such as democracy, freedom of speech, privacy protection, health improvement, technology development, security and control, etc, will continue to collide with each other. Along with the continuing technology developments, laws and regulations will further develop, keeping TMT lawyers in Taiwan busy. With such diversity of issues and new technologies, TMT lawyers need to be well-equipped with an understanding of the technology developments and evolution of business models. It may be difficult for a TMT lawyer to weigh and strike a balance in upholding the above values, but it is extremely important for a TMT lawyer to be open-minded in finding a solution to a new issue or dilemma.