Trade in Personal Data: Extending International Legal Mechanisms to Facilitate Transnational Trade in Personal Data?
EDPL,(2), 1-16 (2020)
UNSW Law Research Series No. 20-37
17 Pages Posted: 21 Jul 2020
Date Written: 2020
The transnational trade in personal data, while emerging as a valuable economic activity, poses many challenges for regulators and organizations. One of the major challenges is the fragmented and ad hoc approach taken by countries, and the European Union, in their data protection laws. This has led to data protection laws varying greatly from jurisdiction to jurisdiction. This paper will explore alternative legal mechanisms that might be available in the international arena to assist in the control and regulation of trade in personal data. The starting point is to review the use of different approaches that are adopted in intellectual property and copyright law to address this issue. Another vantage point is to espouse a contractual approach, which arguably is most achievable because the general principles governing contractual obligations are similar in most jurisdictions. This paper will argue that the Convention on the International Sale of Goods (CISG), can provide an alternative legal mechanism that can effectively help to regulate the cross-border trade in personal data. The paper will highlight how the CISG can be attractive as a practical legal mechanism for managing the sale of personal data through transnational contracts and by relying on copyright law. Applying the CISG provides individuals and entities with another legal mechanism that they can use effectively, not only to provide a level of control over personal data, but more importantly, to help facilitate trade in personal data. However, before concluding that the CISG is an effective legal mechanism, it will be important to determine whether personal data can be categorized as a good. It is our view that, in response to this challenge, personal data can be the subject of a sale of goods, and therefore can be subject to the application of the CISG.
Keywords: transnational trade, personal data, data protection, control, regulation, CISG
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