CIPIL Seminar: 'Plus ça change? Trading privacy post-Brexit: a third country perspective'

Abstract

This presentation examines the potential effect of the EU's General Data Protection Regulation (GDPR) on a 3rd country, Australia, and what lessons may be drawn for a Brexited UK. The GDPR has somewhat controversial extra-territorial effects, inasmuch as it purports to apply to controllers or processors based outside of the EU in certain circumstances. This has provoked great interest so far in Australia, a country with a data protection framework contained in the Privacy Act, but one which probably would not be judged 'adequate' by the EU.

Australia is also a jurisdiction without comprehensive enforceable human rights norms (including rights to privacy and data protection). As a result, especially as regards privacy law, Australia may be thought of as a counterfactual to the UK: it represents a very similar legal system historically, due to its status as a former British colony, but one which did not 'Europeanise'. While until recently it seemed that the two jurisdictions were increasingly diverging, Brexit may halt that drift. At the same time, the Australian experience shows that, for a middle-sized economy with larger and more powerful trading partners, governance through trade, including in areas of data and the digital economy, may still entail a loss of 'sovereignty', to the extent that the standards of the more geopolitically and economically powerful partner are adopted. Having regard to the various trade agreements under negotiation involving Australia - i.e. RCEP with China and others, the EU-Australia FTA, and the global Trade in Services Agreement (TiSA) - this presentation will ask the question of whether EU data protection norms have become global standards to which third countries must adhere, but over which third countries have limited influence.

Bio

Dr Angela Daly is Vice Chancellor's Research Fellow in Queensland University of Technology's Faculty of Law (Australia) and a research associate in the Tilburg Institute for Law, Technology and Society (Netherlands). She is a socio-legal scholar of technology and is the author of Socio-Legal Aspects of the 3D Printing Revolution (Palgrave 2016) (based on her postdoctoral work at Swinburne University of Technology) and Private Power, Online Information Flows and EU Law: Mind the Gap (Hart 2016) (based on her doctoral work at the European University Institute). She has expertise in competition and sector-specific regulation, intellectual property, data protection and human rights across the EU, UK, US and Australian jurisdictions.