International trade agreements: Let’s talk about the exchange of personal data

The EU-Japan Economic Partnership Agreement/Free Trade Agreement (FTA), which was originally set to be approved by the end of this year after talks officially began in 2013, has recently been met with criticism from members of the European Commission’s DG Justice and Consumers and Members of the European Parliament following a request from Japanese negotiators to include data flows in the Agreement.

The deal with Japan could add as much as 0.8 percent to European GDP and would represent a significant opportunity for Europe considering that Japan is a primary investor in the EU.  According to a recent report from McKinsey, data flows have increased global GDP by 10.1 percent with respect to potential growth without cross-border data flows, demonstrating the incredible potential that digitalization can offer.  

Our economies become increasingly global and digital everyday and our GDPs increasingly depend on the flow of data as a driving force of growth.  It is, however, a delicate balancing act where privacy and data protection rights must be upheld in order to foster consumer trust and where excess regulation has the potential to reduce trade.  This is precisely this balancing act in which our legislators and privacy gatekeepers find themselves today.

More and more data protection and the right to privacy have played significant roles international trade agreements.  Examples include the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA), where critics, including civil society organizations and MEPS, have claimed that such agreements would undermine the fundamental right of European citizens to data protection as per article 8 of the European Charter of Fundamental Rights.  In fact, the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament, led by Jan Albrecht, requested that the European Commission “fully exempts the existing and future EU legal framework on the protection of personal data from the [TTIP] agreement”.

Yet again with the EU-Japan FTA, data protection represents a point of dispute and the European Commission has indeed refused to include data protection standards in the agreements.  It should rightfully come to no surprise that European officials are concerned about such a proposal by Japanese negotiators considering that the exchange of data is the core of digital trade, complicating the matter especially if such an inclusion would undermine data protection standards.  And while I stand firm in my belief that the European Commission should not lower data protection standards, we must also refrain from considering out European principles, as set forth in the new General Data Protection Regulation, as a worldwide data protection code that is to be imposed globally.  

Instead, a constructive solution is that of sitting down at the table together to openly discuss international data protection rules, potentially based on European principles, but equally inspired by other data protection principles belonging to other legal cultures.  Data protection is global by definition and we must not forget that.  The Commission should therefore proactively lead the international effort towards global rules of engagement which would be of benefit not only to European citizens, but to the citizens of the world. This idea represents a challenge for the next few years and is precisely what global businesses, consumers, users, and citizens need in our increasingly digital society. 

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