However, the effectiveness of this conflicts rule is somewhat mitigated, on the
one hand, by the fact that Common Law jurisdictions may dismiss cases on the basis
of the doctrine of forum non conveniens if the issues in dispute are subject to a
foreign law
180 ; and, on the other hand, because the contents of the foreign applicable
law are not to be determined ex officio by the competent court, but rather pleaded and
proven by the party relying on it.
181
As a result, Common Law jurisdictions will tend to apply more frequently the lex
fori by default to claims of liability for damages caused by the unlawful processing
of personal data. Although this may improve efficiency in international litigation, it
may as well, to a certain extent, promote forum shopping in respect of such claims.
5 Concluding Remarks
5.1 The Basic Approaches to Regulation of Data Protection
in the Internet
In the era of the Internet and of large scale automated processing of information, the
protection of personal data has unequivocally become a universal concern.
Although the technological developments occurred in this area over the past four
decades have dramatically improved humankind’s access to information and knowledge, and opened impressive new perspectives for scientific research and entrepreneurial activities, new and unprecedented risks have also arisen in what regards, for
example, the safeguard of informational privacy, off air competition and even—as
recent occurrences in Europe and the U.S. with potentially long-lasting effects in
public life have shown—of the proper functioning of democratic institutions.
The present report has evidenced that, although these concerns are currently
shared by a significant number of countries and supranational organizations, the
basic approaches to the regulation of personal data protection still differ widely
around the globe.
The major differences identified in the previous sections concern in particular the
following areas:
a) The sources of regulation of personal data processing, in respect of which the
European trend to codify and comprehensively harmonize the law applicable in
this field sharply contrasts with the American sector-specific approach to public
regulation on data protection, which is largely complemented by self-regulation
instruments emanating from the private sector, such as codes of conduct or
transparency principles, which enjoy only a limited degree of enforceability;
180 See Fentiman (2017), pp. 797 ff.
181 See, for a comparative overview of this matter, see Esplugues et al. (2011).
40
D. Moura Vicente and S. de Vasconcelos Casimiro
one hand, by the fact that Common Law jurisdictions may dismiss cases on the basis
of the doctrine of forum non conveniens if the issues in dispute are subject to a
foreign law
180 ; and, on the other hand, because the contents of the foreign applicable
law are not to be determined ex officio by the competent court, but rather pleaded and
proven by the party relying on it.
181
As a result, Common Law jurisdictions will tend to apply more frequently the lex
fori by default to claims of liability for damages caused by the unlawful processing
of personal data. Although this may improve efficiency in international litigation, it
may as well, to a certain extent, promote forum shopping in respect of such claims.
5 Concluding Remarks
5.1 The Basic Approaches to Regulation of Data Protection
in the Internet
In the era of the Internet and of large scale automated processing of information, the
protection of personal data has unequivocally become a universal concern.
Although the technological developments occurred in this area over the past four
decades have dramatically improved humankind’s access to information and knowledge, and opened impressive new perspectives for scientific research and entrepreneurial activities, new and unprecedented risks have also arisen in what regards, for
example, the safeguard of informational privacy, off air competition and even—as
recent occurrences in Europe and the U.S. with potentially long-lasting effects in
public life have shown—of the proper functioning of democratic institutions.
The present report has evidenced that, although these concerns are currently
shared by a significant number of countries and supranational organizations, the
basic approaches to the regulation of personal data protection still differ widely
around the globe.
The major differences identified in the previous sections concern in particular the
following areas:
a) The sources of regulation of personal data processing, in respect of which the
European trend to codify and comprehensively harmonize the law applicable in
this field sharply contrasts with the American sector-specific approach to public
regulation on data protection, which is largely complemented by self-regulation
instruments emanating from the private sector, such as codes of conduct or
transparency principles, which enjoy only a limited degree of enforceability;
180 See Fentiman (2017), pp. 797 ff.
181 See, for a comparative overview of this matter, see Esplugues et al. (2011).
40
D. Moura Vicente and S. de Vasconcelos Casimiro