Many texts refer the risk of using data protection as a measure to protect domestic
suppliers. Hence the provisions that make clear that measures in this respect cannot
“circumvent” trade liberalisation or be the means of “arbitrary or unjustifiable
discrimination”. The most complete guarantee of European standards is in the
EU-CAN CETA. It sets the obligation of the Parties to “maintain adequate safeguards to protect privacy” (similar dispositions do exist in electronic-commerce
chapters). A couple of agreements with no European Parties (MEX-PAN FTA and
Pacific Alliance) points to the need of a permission from a regulating authority.
The second kind of rules on data protection in financial services chapters does not
reveal a significant variation. In fact, the general treatment of certain information is
already made in the GATS, Annex on Financial Services, Article 2. The rule thereby
laid down, with more or less changed wording, is repeated in many regional and
bilateral agreements with little differences.
9.3 Data Protection Measures and Electronic Commerce
There is a wide variety of provisions on data protection and electronic commerce. It
varies from a great deal of chapters with no direct reference to the issue to the quite
complete regime of AUT-SIN FTA (2017). From the ten American FTAs under
analysis, seven contain no provisions on data protection in their chapters on electronic commerce and the other two (with Chile and Panama) only include it in
cooperation issues. The USA-JOR FTA (2001) contains no chapter on the issue and
the sole article on the issue does not refer to data protection. Nevertheless, it is
necessary to remember that the Trans Pacific Partnership, aborted by the present
American Presidency, held a provision thereon.
125
125 TTP, Chapter 14, Article 14.8: “Personal Information Protection. 1. The Parties recognise the
economic and social benefits of protecting the personal information of users of electronic commerce
and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection
of the personal information of the users of electronic commerce. In the development of its legal
framework for the protection of personal information, each Party should take into account principles
and guidelines of relevant international bodies.6 3. Each Party shall endeavour to adopt
non-discriminatory practices in protecting users of electronic commerce from personal information
protection violations occurring within its jurisdiction. 4. Each Party should publish information on
the personal information protections it provides to users of electronic commerce, including how:
(a) individuals can pursue remedies; and (b) business can comply with any legal requirements.
5. Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility
between these different regimes. These mechanisms may include the recognition of regulatory
outcomes, whether accorded autonomously or by mutual arrangement, or broader international
frameworks. To this end, the Parties shall endeavour to exchange information on any such
mechanisms applied in their jurisdictions and explore ways to extend these or other suitable
arrangements to promote compatibility between them.”
Data Protection in International Trade Law
515
suppliers. Hence the provisions that make clear that measures in this respect cannot
“circumvent” trade liberalisation or be the means of “arbitrary or unjustifiable
discrimination”. The most complete guarantee of European standards is in the
EU-CAN CETA. It sets the obligation of the Parties to “maintain adequate safeguards to protect privacy” (similar dispositions do exist in electronic-commerce
chapters). A couple of agreements with no European Parties (MEX-PAN FTA and
Pacific Alliance) points to the need of a permission from a regulating authority.
The second kind of rules on data protection in financial services chapters does not
reveal a significant variation. In fact, the general treatment of certain information is
already made in the GATS, Annex on Financial Services, Article 2. The rule thereby
laid down, with more or less changed wording, is repeated in many regional and
bilateral agreements with little differences.
9.3 Data Protection Measures and Electronic Commerce
There is a wide variety of provisions on data protection and electronic commerce. It
varies from a great deal of chapters with no direct reference to the issue to the quite
complete regime of AUT-SIN FTA (2017). From the ten American FTAs under
analysis, seven contain no provisions on data protection in their chapters on electronic commerce and the other two (with Chile and Panama) only include it in
cooperation issues. The USA-JOR FTA (2001) contains no chapter on the issue and
the sole article on the issue does not refer to data protection. Nevertheless, it is
necessary to remember that the Trans Pacific Partnership, aborted by the present
American Presidency, held a provision thereon.
125
125 TTP, Chapter 14, Article 14.8: “Personal Information Protection. 1. The Parties recognise the
economic and social benefits of protecting the personal information of users of electronic commerce
and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection
of the personal information of the users of electronic commerce. In the development of its legal
framework for the protection of personal information, each Party should take into account principles
and guidelines of relevant international bodies.6 3. Each Party shall endeavour to adopt
non-discriminatory practices in protecting users of electronic commerce from personal information
protection violations occurring within its jurisdiction. 4. Each Party should publish information on
the personal information protections it provides to users of electronic commerce, including how:
(a) individuals can pursue remedies; and (b) business can comply with any legal requirements.
5. Recognising that the Parties may take different legal approaches to protecting personal information, each Party should encourage the development of mechanisms to promote compatibility
between these different regimes. These mechanisms may include the recognition of regulatory
outcomes, whether accorded autonomously or by mutual arrangement, or broader international
frameworks. To this end, the Parties shall endeavour to exchange information on any such
mechanisms applied in their jurisdictions and explore ways to extend these or other suitable
arrangements to promote compatibility between them.”
Data Protection in International Trade Law
515