Free Flow of Information: Balancing Trade, Freedom of Expression and Privacy Trans-Pacific Partnership Agreement Auckland, NZ 07 December, 2012 Carolina Rossini Director for International Intellectual Property Electronic Frontier Foundation
The Internet is one of themost vibrant platforms forenhancing communication Jost Amman, 1568
Policies to Enhance Freedom of Expression and Information• Facilitate communication• Protect freedom of expression• Provide avenues for democratic participation• and also necessary for competitiveness, trade and innovation
Policies to Enhance Freedom of Expression “Everyone has the right to freedom of opinion and expression; this right includes freedom to holdopinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 19 of the Universal Declaration of Human Rights
• The economic benefits of unimpeded information flows are undeniable• emerging innovative cloud-based platforms necessarily operate in numerous jurisdictions at once, meaning the free flow of information is a necessary condition for their ongoing existence.
Global Chokepoints is an online resource created to document and monitor global proposals to turn Internet intermediaries into copyright police. These proposals harm Internet users’rights of privacy, due process and freedom of expression, and endanger the future of the free and open Internet. https://globalchokepoints.org/
Our assertion: It is vital to allow sovereigncountries to set their own data flow and privacy levels
The Trans-Pacific Partnership agreement seeks to adopt a general prohibition on restrictions to the free flow of online information, raising severalquestions regarding the role of trade agreements. While the free flow of information has undeniable economic and trade benefits, it is also inextricably linked with complex social and politicalconsiderations that might not be best resolved in secretive, exclusive closed door trade negotiations.
Forum shopping• The total number of new data privacy laws globally, viewed by decade, shows that their growth is accelerating, not merely expanding linearly: 8 (1970s), 13 (1980s), 21 (1990s), 35 (2000s) and 12 (2 years of the 2010s), giving the total of 89. • Is TPP the right place for this discussion???
• Given the enforcement powers envisioned in the TPP, the breadth of this can bring a potentially vast range of online activity within the scope of trade enforcement.• Lots of internet-related stuff might then be decided by trade tribunals (including, presumably, potential conflicts between free flow of info and IP enforcement, free flow of info and privacy protection, free flow of info and consumer protection legislation, etc.).
• Trade tribunals are not the place to discuss human rights!
• Privacy is a fundamental human right, and is central to the maintenance of democratic societies. It is essential to human dignity and it reinforces other rights, such as freedom of expression and association, and is recognized under international human rights law.(1)• Activities that are contrary to the right to privacy, including the surveillance by public authorities of personal communications, can only be justified where they are necessary for a legitimate aim, strictly proportionate, and prescribed by law.(2)
• Interesting framework: Chile FTA with Australia and Colombia, which requires countries to provide some level of protection. (A "shall language" not a "may language")
Which level? 3 acceptable frameworks: "comparable safeguards” (UN Language) U.N. Doc. A/44/49 (1989) "equivalent level of protection" (OECD language) “adequate level of protection" (EU language). However, in all cases the language must be an "at least" not the "up-to” and "at least according to OECD principles".
Recognizing the importance of the free flow of information and knowledge in facilitating trade, innovation and freeexpression, but also recognizing the importance of protecting personal data and privacy, Members should endeavor to promote and encourage the free flow of electronic information across borders, while cooperating towards the establishment of compatible frameworks for the effective protection of privacy, personal data, consumers in e- commerce settings, individual health and competition, and while generally respecting fundamental human rights of all individuals. Nothing in this Agreement shall be construed toprevent any Member from adopting or enforcing measures to protect the privacy of individuals.
Conclusions• countries should not use trade agreements to challenge privacy laws as trade barriers• we need to make clear about what type of information we are discussing when discussing “free-flow”, which historically is related to cross-personal-data flow• and if we want the language to go beyond cross-data-flow and actually deal with freedom of expression, the e-commerce chapter is a limited venue for that
Footnotes(1) Universal Declaration of Human Rights Article 12, United Nations Convention on Migrant Workers Article 14, UN Convention of the Protection of the Child Article 16, International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights Article 17; regional conventions including Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Johannesburg Principles on National Security, Free Expression and Access to Information, Camden Principles on Freedom of Expression and Equality.(2) Martin Scheinin, “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” p11, available at http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/A_HRC_13_37_AEV.pdf. See also General Comments No. 27, Adopted by The Human Rights Committee Under Article 40, Paragraph 4, Of The International Covenant On Civil And Political Rights, CCPR/C/21/Rev.1/Add.9, November 2, 1999, available at http://www.unhchr.ch/tbs/doc.nsf/0/6c76e1b8ee1710e380256824005a10a9?Opendocument .(3) Greenleaf, Graham , Global Data Privacy Laws: 89 Countries, and Accelerating (February 6, 2012). Privacy Laws & Business International Report, Issue 115, Special Supplement, February 2012; Queen Mary School of Law Legal Studies Research Paper No. 98/2012. Available at SSRN: http://ssrn.com/abstract=2000034