Panta rhei: A European Perspective on Ensuring a High-Level of Protection of Digital Human Rights in a World in Which Everything Flows

Abstract

Pantha rhei (‘everything flows’) turns out to be a very fitting metaphor for how terabytes of digital data rush through the network of networks. Data flows tend to undermine outdated regulatory formations and to erode the paradigms that used to underpin a society’s conventional right to self-governance. Throughout this volume it emerges that international trade law has successfully co-opted cross-border data flows as a desirable baseline for digital trade. This raises the question how the inclusion of the free flow of data in international trade law would affect the prospects for the transnational protection of human rights. As a stand-alone commitment, the free flow of data namely lacks any normative underpinning and only through the interplay with domestic legal frameworks human rights would become recognized.

In my contribution I argue that the inclusion of cross-border data flows as a new trade law discipline would subtly reinforce the transformative power of data flows leaving human rights enforcement to domestic institutions which in themselves have been found inferior to deal with the issues at hand. In other words, the opportunity structures offered by international trade law will not advance the construction of a global information civilization that is founded on the respect for human rights. Rather, multilevel economic governance should provide for constitutional pluralism and sufficient margin for experimentation with novel strategies to give effect to human rights in the online context. I conclude with a plaidoyer for a new quid pro quo in digital trade in which the liberalization of cross-border data flow better recognises the enhanced need for human rights accountability.

Keywords: Data flow, international trade law, e-commerce, WTO, human rights law, artificial intelligence, privacy, European law, constitutional pluralisms

JEL Classification: K33