Extraterritoriality and Regulation of International Data Transfers in EU Data Protection Law

Forthcoming in International Data Privacy Law, Volume 5, Issue 4 (2015)

University of Cambridge Faculty of Law Research Paper No. 49/2015

18 Pages Posted: 16 Aug 2015 Last revised: 10 Oct 2015

Christopher Kuner

Vrije Universiteit Brussel (VUB), Brussels; Faculty of Law, University of Cambridge; London School of Economics - Law Department; Centre for Information and Innovation Law, University of Copenhagen

Date Written: August 30, 2015

Abstract

Use of the term “extraterritorial” to describe the regulation of international transfers of personal data in EU data protection law has led to confusion about the scope of such regulation. Any distinction between extraterritoriality “in scope” and “in effect” has become meaningless. Extraterritoriality in EU regulation of international data transfers is intrinsically neither good nor bad; rather, its appropriateness depends on how it is used and implemented. Regulation of international data transfers in EU data protection law tends to apply in a “black or white” fashion, without the safety valves necessary to prevent jurisdictional overreaching. This leads to increasing conflicts between EU law and the law of third countries. Attention should turn from deciding whether a particular exercise of jurisdiction is extraterritorial, to determining the conditions under which it can be appropriate. The controversy surrounding extraterritoriality illustrates the need to set boundaries to the application of EU data protection law.

Keywords: Privacy, data protection, jurisdiction, extraterritoriality, Internet

Suggested Citation

Kuner, Christopher, Extraterritoriality and Regulation of International Data Transfers in EU Data Protection Law (August 30, 2015). Forthcoming in International Data Privacy Law, Volume 5, Issue 4 (2015); University of Cambridge Faculty of Law Research Paper No. 49/2015. Available at SSRN: https://ssrn.com/abstract=2644237

Christopher Kuner (Contact Author)

Vrije Universiteit Brussel (VUB), Brussels ( email )

Pleinlaan 2
Brussels, 1050
Belgium

Faculty of Law, University of Cambridge ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Centre for Information and Innovation Law, University of Copenhagen ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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