The document discusses balancing the free flow of information, freedom of expression, and privacy in trade agreements like the Trans-Pacific Partnership. While facilitating communication and trade has benefits, these agreements could impact human rights by deciding complex issues around these topics in closed trade negotiations instead of through open democratic processes. Countries should be able to set their own privacy laws and not have them challenged as trade barriers in trade agreements.

1. 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

2. The Internet is one of the
most vibrant platforms for
enhancing communication
Jost Amman, 1568

3. 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

4. Policies to Enhance Freedom of Expression
“Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold
opinions 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

5. • 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.

6. 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/

7. Our assertion:
It is vital to allow sovereign
countries to set their own data
flow and privacy levels

8. The Trans-Pacific Partnership agreement seeks to
adopt a general prohibition on restrictions to the
free flow of online information, raising several
questions 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 political
considerations that might not be best resolved in
secretive, exclusive closed door trade
negotiations.

9. 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. [3]
• Is TPP the right place for this discussion???

10. • 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.).

11. • Trade tribunals are not the place to
discuss human rights!

12. • 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)

13. • Interesting framework:
Chile FTA with Australia and Colombia,
which requires countries to provide some
level of protection. (A "shall language" not
a "may language")

14.  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".

15. Recognizing the importance of the free flow of information
and knowledge in facilitating trade, innovation and free
expression, 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 to
prevent any Member from adopting or enforcing measures to
protect the privacy of individuals.

16. 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

17. Thank You!
¡Gracias!
cảm ơn bạn !
terima kasih!
http://www.eff.org

18. 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