Should Fundamental Rights to Privacy and Data Protection be a Part of the EU's International Trade ‘Deals’?

Svetlana Yakovleva

doi:10.1017/s1474745617000453

Abstract

AbstractThis article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks.Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.

Highlights

The recent Communication from the European Commission (Commission) rightly acknowledges that ‘[I]n the digital era, promoting high standards of data protection and facilitating international trade must ... necessarily go hand in hand.’[1]. This document was the result of heated debates on how to reconcile the European Union’s (EU) fundamental rights approach with both the protection of privacy and personal data and cross-border data flows essential for the flourishing of international trade
The failure to distinguish between the two normative goals is a problem because international trade law’s accommodation of privacy and personal data regulation undermines the autonomy of states to pursue a fundamental rights approach
This has not been the case in relation to the Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA).[152]

Summary

Introduction

The recent Communication from the European Commission (Commission) rightly acknowledges that ‘[I]n the digital era, promoting high standards of data protection and facilitating international trade must ... necessarily go hand in hand.’[1]. It is conceivable that there is a risk that EU rules on transfer of personal data to third countries could be challenged and found non-compliant with EU’s international trade commitments In this context, the failure to distinguish between the two normative goals is a problem because international trade law’s accommodation of privacy and personal data regulation undermines the autonomy of states to pursue a fundamental rights approach. The failure to distinguish between the two normative goals is a problem because international trade law’s accommodation of privacy and personal data regulation undermines the autonomy of states to pursue a fundamental rights approach These mechanisms subordinate the public policy goal of protecting privacy and personal data to the goal of trade liberalization. The EU had not, as of this writing, formulated its position on cross-border data flows and high standards of the protection of personal data in this connection

Tensions between dignitary and economic aspects of personal data

Conflict of regulatory goals and fragmentation of data protection standards

The right to regulate

Limited role of human rights in international trade law

Conclusion