From a panoramic perspective it is possible to assert that the multilateral systems
on the trade of goods and services treat in diverse ways the data protection issues. In
the field of covered services, which potentially encompasses many e-commerce
flows, there is an explicit rule protecting the policy space of Members. Nevertheless,
it is not clear how far this rule reaches, since the malicious use of data protection
standards to protect domestic markets may be construed as being beyond a reasonable and proportional use of these measures and, therefore, falling outside the scope
of allowed policies. The GATT system sets no rule on data protection. Consequently, domestic, bilateral and regional policies on this issue may be
non-compliant with WTO, insofar as they unduly restrict trade.
6 European Agreements’ Annexes and Chapters on Data
Protection
A Chapter on data protection is relatively odd in FTAs, though the European efforts
for the creation of Comprehensive Economic Trade Agreements (CETAs) open a
wider space to the establishment of common bottom lines for regulatory standards.
However, more frequently the European agreements use annexes to indirectly extend
the Union’s standards to other parties. It is an important instrument both in order to
prevent the diminishing of production and marketing costs through regulatory races
to the bottom and to cooperate and aid the adoption of minimum regulatory standards. Since the EU and its Member States hold high standards on the legal defence
of fundamental individual rights, particularly privacy through data protection, there
is a case for the inclusion of this issue in international agreements.
It is important to stress that, although sometimes the data protection chapters
sound too idealistic and hortatory, provisions on minimum protection standards are
very important to set clear limits to the exercise of regulatory jurisdiction of the
states. The need to transfer data to offer and perform liberalised services, as well as to
make electronic commerce operations effective, makes it very clear that the imposition of high standards on data protection and, consequently, on the transfer and
processing of personal information produce impacts on these transactions and,
therefore, may be considered as a barrier to international trade. So, the agreement
on minimum standards on data protection draws a clearer line dividing legitimate
and illegitimate measures, since everything below it allows, on basis of international
consensus, correcting defences.
6.1 Council of Europe: European Treaty Series N. 108
The Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data (CE Convention 108), signed under the Council of
Data Protection in International Trade Law
485
on the trade of goods and services treat in diverse ways the data protection issues. In
the field of covered services, which potentially encompasses many e-commerce
flows, there is an explicit rule protecting the policy space of Members. Nevertheless,
it is not clear how far this rule reaches, since the malicious use of data protection
standards to protect domestic markets may be construed as being beyond a reasonable and proportional use of these measures and, therefore, falling outside the scope
of allowed policies. The GATT system sets no rule on data protection. Consequently, domestic, bilateral and regional policies on this issue may be
non-compliant with WTO, insofar as they unduly restrict trade.
6 European Agreements’ Annexes and Chapters on Data
Protection
A Chapter on data protection is relatively odd in FTAs, though the European efforts
for the creation of Comprehensive Economic Trade Agreements (CETAs) open a
wider space to the establishment of common bottom lines for regulatory standards.
However, more frequently the European agreements use annexes to indirectly extend
the Union’s standards to other parties. It is an important instrument both in order to
prevent the diminishing of production and marketing costs through regulatory races
to the bottom and to cooperate and aid the adoption of minimum regulatory standards. Since the EU and its Member States hold high standards on the legal defence
of fundamental individual rights, particularly privacy through data protection, there
is a case for the inclusion of this issue in international agreements.
It is important to stress that, although sometimes the data protection chapters
sound too idealistic and hortatory, provisions on minimum protection standards are
very important to set clear limits to the exercise of regulatory jurisdiction of the
states. The need to transfer data to offer and perform liberalised services, as well as to
make electronic commerce operations effective, makes it very clear that the imposition of high standards on data protection and, consequently, on the transfer and
processing of personal information produce impacts on these transactions and,
therefore, may be considered as a barrier to international trade. So, the agreement
on minimum standards on data protection draws a clearer line dividing legitimate
and illegitimate measures, since everything below it allows, on basis of international
consensus, correcting defences.
6.1 Council of Europe: European Treaty Series N. 108
The Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data (CE Convention 108), signed under the Council of
Data Protection in International Trade Law
485