'Data Privacy Laws in Asia – Context and History' (Chapter 1 of Asian Data Privacy Laws – Trade and Human Rights Perspectives)

Asian Data Privacy Laws – Trade and Human Rights Perspectives, Oxford University Press, 2014

UNSW Law Research Paper No. 2014-55

36 Pages Posted: 29 Oct 2014 Last revised: 24 Oct 2015

Graham Greenleaf

University of New South Wales, Faculty of Law

Date Written: October 16, 2014

Abstract

The first chapter of Asian Data Privacy Laws opens with illustrations from across Asia of where laws protecting data privacy have made a difference to individual lives. The main focus of the book is those specialised laws which systematically regulate the use of information about people, covering either or both of a country’s public sector or most of its private sector. Fourteen of twenty six jurisdictions in Asia now have such laws, from over 100 countries globally with such laws. ‘Asia,’ for the purposes of this book, comprises the three sub-regions of South Asia, South-East Asia and North-East Asia. Other laws regulating data privacy are also considered, including constitutional, criminal and civil law protections. All twenty six Asian jurisdictions are covered in this book.

When considering data privacy protection in Asia, it is necessary to remember ‘we’re not in Brussels anymore.’ Whereas European data protection law is based on a few key legal instruments, and there are European institutions that give them life, in Asia there are no equivalent binding treaties, or equivalent pan-Asian (or even sub-regional) institutions. A study of data privacy protection in Asia must be a ‘bottom up’ study, whereas the European approach can properly be ‘top down’. It is not only national laws that must be given priority in a study of privacy in Asian countries, but also the situation regarding democracy and the rule of law in each country, which can overwhelm other considerations. In contrast, when considering data privacy laws in Europe (either within the EU countries or the broader Council of Europe countries) it is reasonable to assume both the existence of national democratic institutions and the rule of law.

Comparative studies of national data privacy laws and their administration, or of the underlying principles of such laws and what constitutes effective administration of such laws, are still relatively uncommon, except for the region of the EU. However, a survey of existing comparative works on a global canvas provides a number of hypotheses about data privacy protections which a book such as this may help to test.

The book is structured into three Parts: Part I — Asia and international data privacy standards (chapters 1–3); Part II — National data privacy laws in Asia (chapters 4–16); and Part III — Regional comparisons, standards, and future developments (chapters 17–20).

This introductory chapter concludes with brief discussions of the relationships between fundamental rights and ‘Asian values’; of the implications of democracy for data privacy in a half-democratic Asia; and of conflicting interests in surveillance (public and private sector) and in ‘free flow’ of personal data.

Note: Also included with Chapter 1 are the Foreword by Allan Chiang, Privacy Commissioner for Personal Data, Hong Kong, the author’s Preface and Acknowledgements, and the Table of Contents.

Keywords: privacy, data protection, human rights, Asia, democracy, surveillance, trade

Suggested Citation

Greenleaf, Graham, 'Data Privacy Laws in Asia – Context and History' (Chapter 1 of Asian Data Privacy Laws – Trade and Human Rights Perspectives) (October 16, 2014). Asian Data Privacy Laws – Trade and Human Rights Perspectives, Oxford University Press, 2014; UNSW Law Research Paper No. 2014-55. Available at SSRN: https://ssrn.com/abstract=2514972

Graham Greenleaf (Contact Author)

University of New South Wales, Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
+61 2 9385 2233 (Phone)
+61 2 9385 1175 (Fax)

HOME PAGE: http://www2.austlii.edu.au/~graham

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