Cross-border flow of personal data (digital trade) ought to have data protection

Abstract

The paper provides three specific arguments in support of the two key claims to promote an interface between data protection and digital trade law. It engages in the current academic debate among scholars to understand the role of digital trade law in coordinating the regulatory thicket of national data protection regulations (NDPRs) among states. In pursuance, it proposes a rebuttal to the critique that digital trade law is fundamentally ill-suited to engage in data protection policy debates. The paper argues that data protection and digital trade law cannot remain in separate silos as they both are fundamentally intertwined with the governance of cross-border flow of personal data. Data protection issues should form an indispensable consideration in the context of digital trade liberalisation and vice versa. The paper concludes that the standards regime in international trade law can be considered as a blueprint for the necessary regulatory interface between data protection and digital trade. The paper consists of five main sections. This introduction is the first section. The second section titled ‘Interconnected structural blocks of a data protection regulation in general’ provides the general structural elements of a data protection regulation and how the data protection principles and practices combine to actualise the mechanisms which govern the cross-border flow of personal data in a jurisdiction. It highlights that the structural elements of a data protection regulation are interconnected, which necessitates policy coherence between data protection and digital trade law. The third section titled ‘Three arguments against and in favour of an interface between data protection and digital trade law’ provides an outline of the critiques by Irion, Kaminski and Yakovleva to the proposals by Chander and Schwartz to promote a legal interface between data protection and digital trade law. Notably, it provides a rebuttal to the critiques by supporting the proposals by Chander and Schwartz. It supports the proposal for an international agreement on data privacy among states in the future which can bring coherence in the governance of cross-border flow of personal data. The fourth section titled ‘Future interface between data protection and digital trade law’ underscores the need for a self-standing agreement on data privacy in the context of international trade law. This is due to the fact that traditional trade law approaches need readjustment to cohesively tackle the realities of digital economy, especially data protection issues. In pursuance, it proposes that the trade standards regime, ie the Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary (SPS) Agreement in the World Trade Organization’s (WTO) provide a unique blueprint to envision a self-standing legal agreement and forum on data protection concerns as it relates to cross-border flow of personal data in international trade law. The section briefly highlights the relevance of the WTO trade standards regime as a blueprint for the future international data privacy agreement in international trade law. The fifth section concludes the paper by raising two key challenges for a policy coherence between data protection and digital trade law — (a) progressive coordination and (b) a reasonable legal interface between the two regimes in both theory and practice.