COVID-19 and Applicable Law to Transnational Personal Data: Trends and Dynamics

47 Pages Posted: 8 Apr 2020

Date Written: April 6, 2020


The recent COVID-19 outbreak has pushed the tension of protecting personal data in a transnational context to an apex. Using a real case where the personal data of an international traveller was illegally released by Chinese media, the paper identifies that three trends have emerged at the each stage of conflict-of-laws analysis for lex causae: (1) the EU, the US, and China characterize the right to personal data differently, (2) the spread-out unilateral applicable law approach comes from the fact that all three jurisdictions either consider the law for personal data protection as a mandatory law or adopt connecting factors leading to the law of the forum, and (3) the EU and China strongly advocate de-Americanisation of substantive data protection laws. The trends and their dynamics provide valuable implications for developing the choice of laws for transnational personal data. First, this finding informs parties that jurisdiction is a predominant issue in data breach cases because courts and regulators would apply the forum law. Second, currently there is no international treaty or model law on choice-of-law issues for transnational personal data. International harmonization efforts will be a long and difficult journey considering how the trends demonstrate not only the states’ irreconcilable interests, but also how states may consider these interests as their fundamental values that they do not want to trade off. Therefore, for states and international organisations, a feasible priority is to achieve regional coordination or interoperation among states with similar values on personal data protection.

Keywords: COVID-19, Applicable Law, Transnational, Personal Data, Conflict of Laws

JEL Classification: K10, K30

Suggested Citation

Huang, Jie (Jeanne), COVID-19 and Applicable Law to Transnational Personal Data: Trends and Dynamics (April 6, 2020). Sydney Law School Research Paper No. 20/23, Available at SSRN:

Jie (Jeanne) Huang (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

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