Flows of data to the ‘Land of the Rising Sun’
In principle, it should be possible to create a state-of-the-art digital economy between Japan and the EU. To this end, data protection legislation in Japan and the EU is readily reconcilable. So said Marija Bartl and Kristina Irion at a conference in Brussels on JEFTA, a free trade agreement that the EU is keen to sign with Japan.
At the EU-Japan Summit in July this year, the European Union (EU) and Japan have achieved a political agreement in principle on the content of the Japan-EU Economic Partnership Agreement. New agreements should make mutual trade easier, but some matters have yet to be settled. In order to spare its ratification from the heated debate over data protection, the draft does not contain a provision on data flows yet.
In November 2017, Marija Bartl and Kristina Irion spoke at a conference on JEFTA organised by the GUE/NGL in the European Parliament (Confederal Group of the European United Left/Nordic Green Left). According to the researchers, broad safeguards are required in favour of privacy and security of personal data in such a complex and modern trade agreement as JEFTA, as well as to comply with modern European regulations on data protection. Both parties have such privacy legislation in principle, making this goal possible and reconcilable. If both parties agree to exchange data in line with their own privacy legislation, there should be no reason why this process would still need to be regulated within the framework of JEFTA.
The issue of global data flows is certainly a trending topic in trade diplomacy. When it comes to the data-related provisions in sectoral chapters, trade law in the making in the JEFTA negotiations routinely replicates existing WTO law which seems to reflect the state of affairs during the analogue era, according to the researchers. These provisions are insufficient tosafeguard the progressive electronic privacy law in the EU which for example protects in addition to communications content the confidentiality of metadata and location data.
According to the researchers, an intervention from trade law institutions would also be an undesirable development. The Regulatory Cooperation Chapter as it has been proposed by the EU Commission is an important intervention into the institutional framework of data protection in the EU. It opens up new institutional spaces where data protection measures can be discursively challenged but where independent authorities have been set up in the member states.