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Data Protection is widely recognised as a field of European Union (EU) law that has significant traction beyond the EU's borders, leading to allegations of data protection imperialism, protectionism and data localization on the EU's part. This paper suggests an alternative narrative: one of consistency with the broader corpus of EU law. It illustrates, first, that extraterritoriality mechanisms such as those in EU data protection law are also applied in other fields of EU law. Second, using the example of data flows between the UK and the EU at the end of the transition period, this paper suggests that although protectionist motives might provide an explanation for such extraterritoriality a more plausible justification for this approach is to be found in existing and nascent general principles of EU law, such as mutual trust and the autonomy of the EU legal order. This internal consistency with EU law contradicts claims of data exceptionalism. What it offers is an explanation for, rather than a justification or legitimization of, the extraterritorial impact of EU data protection law.
This timely book examines crucial developments in the field of privacy law, efforts by legal systems to impose their data protection standards beyond their borders and claims by states to assert sovereignty over data. By bringing together renowned international privacy experts from the EU and the US, the book provides an accurate analysis of key trends and prospects in the transatlantic context, including spaces of tensions and cooperation between the EU and the US in the field of data protection law. The chapters explore recent legal and policy developments both in the private and law enforcement sectors, including recent rulings by the Court of Justice of the EU dealing with Google and Facebook, recent legislative initiatives in the EU and the US such as the CLOUD Act and the e-evidence proposal, as well as ongoing efforts to strike a transatlantic deal in the field of data sharing. All of the topics are thoroughly examined and presented in an accessible way that will appeal to scholars in the fields of law, political science and international relations, as well as to a wider and non-specialist audience. The book is an essential guide to understanding contemporary challenges to data protection across the Atlantic.
This book explores the coming into being in European Union (EU) law of the fundamental right to personal data protection. Approaching legal evolution through the lens of law as text, it unearths the steps that led to the emergence of this new right. It throws light on the right’s significance, and reveals the intricacies of its relationship with privacy. The right to personal data protection is now officially recognised as an EU fundamental right. As such, it is expected to play a critical role in the future European personal data protection legal landscape, seemingly displacing the right to privacy. This volume is based on the premise that an accurate understanding of the right’s emergence is crucial to ensure its correct interpretation and development. Key questions addressed include: How did the new right surface in EU law? How could the EU Charter of Fundamental Rights claim to render ‘more visible’ an invisible right? And how did EU law allow for the creation of a new right while ensuring consistency with existing legal instruments and case law? The book first investigates the roots of personal data protection, studying the redefinition of privacy in the United States in the 1960s, as well as pioneering developments in European countries and in international organisations. It then analyses the EU’s involvement since the 1970s up to the introduction of legislative proposals in 2012. It grants particular attention to changes triggered in law by language and, specifically, by the coexistence of languages and legal systems that determine meaning in EU law. Embracing simultaneously EU law’s multilingualism and the challenging notion of the untranslatability of words, this work opens up an inspiring way of understanding legal change. This book will appeal to legal scholars, policy makers, legal practitioners, privacy and personal data protection activists, and philosophers of law, as well as, more generally, anyone interested in how law works.
This book looks at transatlantic jurisdictional conflicts in data protection law and how the fundamental right to data protection conditions the EU's exercise of extraterritorial jurisdiction. Governments, companies and individuals are handling ever more digitised personal data, so it is increasingly important to ensure this data is protected. Meanwhile, the Internet is changing how territory and jurisdiction are realised online. The EU promotes personal data protection as a fundamental right. Especially since the EU's General Data Protection Regulation started applying in 2018, its data protection laws have had strong effects beyond its territory. In contrast, similar US information privacy laws are rooted in the marketplace and carry less normative heft. This has provoked clashes with the EU when their values, interests and laws conflict. This research uses three case studies to suggest ways to mitigate transatlantic jurisdictional tensions over data protection and security, the free flow of information and trade.
The fourth industrial revolution is transforming to make the world we live in today digitalization. It is not new to us that various media mentioned big data, artificial intelligence, and cloud computing. The pace of technological developments and how personal data are being processed affects each of us every day and in all sorts of ways in the light of these changes. Legal entities especially which are charge of protection of privacy and personal data, recognize the need for a data protection standards more critical than ever. The European Union (hereinafter referred to as EU), is well known as a frontrunner of data protection rules, also has the same problem. Basically, The EU's data protection standards are based on the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (hereinafter referred to as Convention 108) adapted by the Council of Europe's (hereinafter referred to as CoE), and the 1995 EU Data Protection Directive (hereinafter referred to as Directive) as well as on the respective case law of the European Court of Human Rights (hereinafter referred to as ECtHR) and of the Court of Justice of the European Union (hereinafter referred to as CJEU). Furthermore the General Data Protection Regulation (hereinafter referred to as GDPR) was adopted on April 14, 2016, and entered into force as of May 25, 2018. The GDPR replaces and expands the Directive by centralizing powers that were previously reserved to the EU Member States. The GDPR was developed with the goal of providing consistent privacy protections for individuals across the EU, and aims to harmonize privacy laws in the EU by providing the same strong data protections for the entire region. In addition to harmonizing privacy protections across the board, the GDPR broadens the jurisdictional reach of the Directive.One of the most significant changes in the GDPR is to extend the reach of European data protection laws to business based outside the Union. The GDPR would impact companies around the world, including Chinese companies. For instance, Chinese companies will become subject to the GDPR, if (i) they are based in the EU, (ii) they offer services and/or goods to data subjects in the EU and thereby come into possession of personal data on the EU citizens, (iii) they monitor behavior of data subjects in the EU, or (iv) public international law prescribes application of the EU Member State law. The GDPR contains a broad jurisdictional test. There are, however, specific principles under international law to assess when the extraterritorial reach of a state is permissible under international law. Especially, under cloud computing models, data is often processed or stored in multiple jurisdictions, creating overlapping jurisdictions for Chinese-domiciled companies and multinationals, because, cloud computing is a style of computing in which dynamically scalable and often virtualized resources are provided as a service over the Internet. The case of Microsoft Corp. v. United States is a good illustration that the nature of cloud computing systems, certain jurisdictional risks will be unavoidable. These computing clouds have grown to include more users across different countries, frequently moving personal data across multiple jurisdictions and inevitably raising concerns over data protection. As legislators in each jurisdiction attempt to pass laws that protect their own constituents, jurisdictional issues arise that threaten the stability of an international cloud computing regime. Even if European Data Protection Authority (hereinafter referred to as DPA) can properly assert jurisdiction over websites and online service providers under the GDPR's jurisdictional test, it is highly unlikely that a Chinese court would enforce the EU order. Geographic overexpansion will inevitably lead to unenforceability, given that the jurisdiction of the EU data protection authorities does not extend beyond the EU borders. Besides, the People's Republic of China (hereinafter referred to as China, or PRC) does not have a comprehensive data protection framework as that in the EU. There are a few provisions to be found across several regulations that address the issue of data protection. The latest substantial development is the Cyber Security Law (hereinafter referred to as CSL), effective from June 1, 2017. It introduces numerous new rules with regard to online activities and networks in China. The scope of the GDPR and the CSL should also be considered in an analysis of the differences between them. Article 3 of the GDPR makes explicit the fact that a company located outside of the EU can fall within the obligation of the GDPR, thus granting the regulation an extraterritorial effect. In contrast, the principle of cyber sovereignty on which the CSL is based is reflected in the territorial scope of the CSL that is under Article 2 strictly limited to the “territory of the People's Republic of China.” With such a stark contrast, it can be concluded that companies located solely in China doing business in China and the EU should comply with both the CSL and the GDPR, while companies solely located in the EU would only be bound by the GDPR.Therefore, this study suggests cross-border cooperation for the EU and China based on above mentioned the notion of the EU data protection law, i.e. the GDPR, and the bilateral agreement such as the Privacy Shield.
Author : Council of Europe Publisher : Council of Europe Page : 402 pages File Size : 48,86 MB Release : 2018-04-15 Category : Political Science ISBN : 9287198497
The rapid development of information technology has exacerbated the need for robust personal data protection, the right to which is safeguarded by both European Union (EU) and Council of Europe (CoE) instruments. Safeguarding this important right entails new and significant challenges as technological advances expand the frontiers of areas such as surveillance, communication interception and data storage. This handbook is designed to familiarise legal practitioners not specialised in data protection with this emerging area of the law. It provides an overview of the EU’s and the CoE’s applicable legal frameworks. It also explains key case law, summarising major rulings of both the Court of Justice of the European Union and the European Court of Human Rights. In addition, it presents hypothetical scenarios that serve as practical illustrations of the diverse issues encountered in this ever-evolving field.
This book on privacy and data protection offers readers conceptual analysis as well as thoughtful discussion of issues, practices, and solutions. It features results of the seventh annual International Conference on Computers, Privacy, and Data Protection, CPDP 2014, held in Brussels January 2014. The book first examines profiling, a persistent core issue of data protection and privacy. It covers the emergence of profiling technologies, on-line behavioral tracking, and the impact of profiling on fundamental rights and values. Next, the book looks at preventing privacy risks and harms through impact assessments. It contains discussions on the tools and methodologies for impact assessments as well as case studies. The book then goes on to cover the purported trade-off between privacy and security, ways to support privacy and data protection, and the controversial right to be forgotten, which offers individuals a means to oppose the often persistent digital memory of the web. Written during the process of the fundamental revision of the current EU data protection law by the Data Protection Package proposed by the European Commission, this interdisciplinary book presents both daring and prospective approaches. It will serve as an insightful resource for readers with an interest in privacy and data protection.
In the contemporary information society, organisations increasingly rely on the collection and analysis of large-scale data (popularly called ‘big data’) to make decisions. These processes, which take place largely beyond the individual’s knowledge, produce a cascade of effects that go beyond privacy and data protection. Should we focus on the possibilities of tackling these often negative effects through other areas of law, or maybe even find new solutions to cope with the dark side of big data? This ground-breaking book is the first to address this crucially important question in detail. Among the issues raised in the analysis are such vital elements as the following: − what is meant by ‘big data’; – ‘privacy’ according to the European Court of Human Rights and the Court of Justice of the European Union; – what the European Union legal framework on privacy and data protection consists of and how it functions in the light of big data; – what companies, governments and other organisations are permitted to do with big data under the current regulatory framework; – the central importance of personal autonomy; – circumstances that influence whether or not the right to privacy is triggered; – big data’s possible impact on democracy through, inter alia, potentially limiting freedom of expression; – how governmental or corporate surveillance chills the receiver’s gathering of information and ideas; – selective offering of choices or information, or manipulation of people’s ideas; – procedural aspects that influence the extrapolation of normative concepts of privacy and data protection; and – how discrimination occurs in big data. This book foregrounds a critical scrutiny of commercial uses of big data – its scale, its limited capacity for independent oversight and the expected prevalence of interference with individuals’ rights. The author’s conclusions explore possible legal alternatives to mitigate the negative impact of big data, using legal instruments, case law and legal academic literature in her analysis. Because the amount of digital data keeps growing and the private lives of individuals are increasingly taking place online – and because of the opacity of the big data process, the fundamental values that are at stake, and the speed of technological developments compared to the pace of legal reform – this comprehensive assessment of flaws in the current framework and possible practical solutions will be warmly welcomed by practitioners, policymakers and government officials in all legal fields related to privacy and data protection.
Countries are increasingly introducing data localization laws, threatening digital globalization and inhibiting cloud computing adoption despite its acknowledged benefits. This multi-disciplinary book analyzes the EU restriction (including the Privacy Shield and General Data Protection Regulation) through a cloud computing lens, covering historical objectives and practical problems, showing why the focus should move from physical data location to effective jurisdiction over those controlling access to intelligible data, and control of access to data through security.
The General Data Protection Regulation (the GDPR) of the European Union (EU) emerges as a hot-button issue in contemporary global politics, policies, and business. Based on an omnibus legal substance, extensive extraterritorial scope and influential market powers, it appears as a standard for global data protection regulations as can be witnessed by the growing tendency of adopting, or adjusting relevant national laws following the instrument across the globe. Under Article 3, of the GDPR applies against any data controller or processor within and outside the EU, who process the personal data of EU residents. Therefore, the long arm of the GDPR is extended to cover the whole world, including Malaysia. This gives rise to tension worldwide, as non-compliance thereof leads to severe fines of up to €20 million or 4% of annual turnover. This is not a hypothetical possibility, rather a reality, as a huge amount of fines are already imposed on many foreign companies, such as Google, Facebook, Uber, and Equifax to name a few. Such a scenario, due to the existence of state sovereignty principles under international law, has made the researchers around the world curious about some questions, why does the EU adopt an instrument having the extraterritorial application; whether the extraterritorial scope is legitimate under normative international law; how the provisions of this instrument can be enforced, and how these are justified. This article attempts to search for answers to those questions by analyzing the relevant rules and norms of international law and the techniques of the EU employed. The article concludes with the findings that the extraterritorial scope of the GDPR is justified under international law in a changed global context. The findings of this article will enlighten the relevant stakeholders, including Malaysian policymakers and business entities, to realise the theoretical aspects of inclusion of the extraterritorial feature of the GDPR, and this understanding may facilitate them to map their future strategies.