Abstract
This Chapter briefly discusses the international, regional frameworks and institutions that currently deal with data protection and privacy. Arguably, the popularity of not only the Internet but also the portable devices such as the Iphone, laptop computers, Ipads, home security and camera systems, even televisions and other household appliances have now become even smarter. In other words, these modern day devices can all access the Internet. Many of these devices travel with the data subject across international borders daily. Moreover, they have created a new living environment or life structure in which personal data become highly valuable in the market economy and critical for personal development, that is no longer national or regional, but international. The internationalization of these devices has forced the internationalization of privacy as it pertains to personal data that, is collected and used over the Internet.
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Notes
- 1.
Micheal Yilma K The United Nations data privacy system and its limits, International Review of Law, Computers & Technology, (2018).
- 2.
Proclaimed by General Assembly Resolution 3384 (XXX) of 10 November 1975.
- 3.
United Nations, Resolution adopted by the General Assembly on 18 December 2013, 68/167. The right to privacy in the digital age, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167, accessed 20 March 2018.
- 4.
Human Rights Council Resolution 28/16.
- 5.
Micheal Yilma K The United Nations data privacy system and its limits, International Review of Law, Computers & Technology, (2018). Normative limitations include the ‘problem of normative dispersion’ in that existing data privacy norms are a mere patchwork of rules dispersed across various instruments that lessened their accessibility and hence effectiveness. Secondly the existing data privacy norms are embodied in an exceeding set of soft law instruments. Thirdly, the existing UN data privacy rules are normatively inferior to their regional counterparts.
- 6.
Ibid, Institutional limitations include the lack of clear institutional arrangements. Owing to the dispersed nature of existing norms, the monitoring responsibility falls on various bodies. The institutional arrangement for the monitoring of existing data privacy rules is as fragmented as the rules are. The other institutional weakness is that these various bodies tasked to monitor scattered data privacy rules lack the requisite enforcement powers to oversee the implementation of those rules.
- 7.
OECD Council Recommendation on Principles for Internet Policy Making, 13 December 2011, p. 4–8.
- 8.
OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data,https://www.oecd.org/sti/ieconomy/2013-oecd-privacy-guidelines.pdf, accessed 5 December 2017.
- 9.
Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (2013).
- 10.
Kirby, M The history, achievement and future of the 1980 OECD guidelines on privacy International Data Privacy Law, Volume 1, Issue 1, 1 (2011) p. 6. Building on predecessors: by not set out to reinvent the wheel or needlessly to alter sensible approaches that had been adopted by our predecessors. OECD value added: There were at least seven features of the Guidelines that constituted the ‘value added’ that the OECD offered in its project: (1) The Guidelines were expressed in technologically neutral terms. (2) The Guidelines were expressed as non-binding. (3) There was also a broad ambit. (4) The Guidelines acknowledged the value of TBDF in itself. (5) The OECD Guidelines added the ‘accountability principle. (6) The Guidelines also called on the OECD member countries to implement the principles and to cooperate with other member countries in such implementation so that gaps would not arise in the operation of the Guidelines between different nation states. (7) Above all, the simple conceptual language of the Guidelines strengthened their influence in the succeeding years. Flexible implementation: A key to the success of the OECD Guidelines is the way in which they envisage that national implementation will follow their own regulatory cultures. This had been a large potential obstacle standing in the way of success because of the concern in non-European countries about what they saw as the expensive and intrusive bureaucratic tradition of European data protection. Survival of the Guidelines: Against this background, the survival of the Guidelines, and their continuing utility 30 years later is remarkable but perhaps understandable. In that 30 years, we have seen the development of the Internet and World Wide Web; of search engines; of technology for location detection; of social networking which challenges the very concept of what is ‘private’ and what is secret; of biometrics and other technologies.
- 11.
Ibid, Realism: It is important to tackle issues presented to information, computer, and communications policies with realism. Personal data should not be disclosed, made available or otherwise used for purposes with consent or by the authority of law. Protecting privacy: having acknowledged the inevitability of some erosion of aspects of personal control over data and individual privacy, it is important not to give up on protection of this value. Reconceptualizing issues: to some extent, in the decades since the OECD Personal Data Guidelines were adopted, policy developments have been confined to particular areas of information, computer, and communications policy. New challenges: many new challenges face any organization that is addressing computer and communications policy today. Some of these challenges include: (a) the development and implementation of new systems of mass surveillance, including facial recognition, whole body imaging, biometric identifiers, and imbedded RFID tags, which the Madrid Declaration suggested should not be implemented at all without ‘a full and transparent evaluation by independent authorities and democratic debate’; (b) Privacy protectors must ever be on the lookout for privacy enhancing technology (PET) and the ways in which such technology itself can be invoked to afford more effective and efficient privacy protection for the individual; (c) Cross-border cooperation in drafting, implementing, and enforcing laws for privacy protection is a daily challenge but one that is already attracting responses. (d) End-user education may be necessary to sustain community awareness about the value of privacy.
- 12.
Tene O (2013) Privacy Law’s Midlife Crisis: A Critical Assessment of the Second Wave of Global Privacy Laws, 74 OHIOST.L.J.1217, 2013, p. 1222.
- 13.
Greenleaf G Global Data Privacy Laws: 89 Countries, and Accelerating’ Privacy Laws & Business International Report, Issue 11–175 (2012).
- 14.
International Conference of Data Protection and Privacy Commissioners, https://icdppc.org/participation-in-the-conference/list-of-accredited-members/ accessed 5 December 2017.
- 15.
39 International Conference of Data Protection and Privacy Commissioners Hong Kong, 25–29 September 2017.
- 16.
Ibid.
- 17.
International Law Commission Report, Annex D, para. 11.
- 18.
Ibid.
- 19.
Ibid.
- 20.
International Organization of Securities Commissions, Harmonization of critical OTC derivatives data elements (other than UTI and UPI) – third batch.
- 21.
World Economic Forum White Paper Digital Transformation of Industries: In collaboration with Accenture, Digital Enterprise, (2016), http://reports.weforum.org/digital-transformation/wp-content/blogs.dir/94/mp/files/pages/files/digital-enterprise-narrative-final-january-2016.pdf, accessed 22 November 2016.
- 22.
Ibid.
- 23.
Asia-Pacific Economic Cooperation, https://www.apec.org/Groups/Committee-on-Trade-and-Investment/Electronic-Commerce-Steering-Group, accessed 5 December 2017.
- 24.
Ibid.
- 25.
APEC Privacy Framework, paragraphs 46–48.
- 26.
International data transfers: the WP29 and the APEC developed a practical tool for multi-national organizations 07 March 2014.
- 27.
Ibid.
- 28.
Bennett C, Raab C, (2006) The Governance of Privacy: Policy Instruments in Global Perspective, MIT Press, 2006, in Greenleaf, Graham, “Sheherezade and the 101 Data Privacy Laws: Origins, Significance and Global Trajectories”, JlLawInfoSci 2; 2014, 23(1), Journal of Law, Information and Science 4.
- 29.
Graham G (2014), “Sheherezade and the 101 Data Privacy Laws: Origins, Significance and Global Trajectories”, JlLawInfoSci 2; 23(1), Journal of Law, Information and Science 4.
- 30.
Ibid.
- 31.
Asia Pacific Privacy Authorities, http://www.appaforum.org/members, accessed 14 January 2018.
- 32.
Ibid.
- 33.
Brunei, Indonesia, Cambodia, Lao, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam.
- 34.
Association of South East Nations, human Rights Declaration 2012, http://www.refworld.org/docid/50c9fea82.html, accessed 2 November 2018.
- 35.
Telecommunications and Information Technology Ministers Meeting, which endorsed the Framework on Personal Data Protection, http://asean.org/storage/2012/05/10-ASEAN-Framework-on-PDP.pdf, accessed 5 December 2017.
- 36.
Ibid.
- 37.
ASEAN Economic Community, http://investasean.asean.org/index.php/page/view/asean-economic-community/view/670/newsid/755/about-aec.html, accessed 2 April 2018.
- 38.
ASEAN Economic Community 2025 Consolidated Strategic Action Plan, http://asean.org/storage/2017/02/Consolidated-Strategic-Action-Plan.pdf, accessed 2 April 2018.
- 39.
Thio L (1999) Implementing Human Rights in ASEAN Countries: “Promises to keep and miles to go before I sleep”, Yale Human Rights and Development Journal, Vol. 2, Iss. 1, Art. 1, pp. 2–5.
- 40.
The Commonwealth Secretariat, http://thecommonwealth.org/sites/default/files/key_reform_pdfs/P15370_6_ROL_Model_Bill_Protection_Personal_Information_2.pdf, accessed 5 December 2017.
- 41.
Treaty on the Function of the European Union, Official Journal of the European Union C 115/47.
- 42.
Greenleaf, G Asia Data Privacy Laws – Trade and Human Rights Perspectives, University New South Wales, (2017).
- 43.
Trans-Pacific Partnership Agreement, Article 14, https://mfat.govt.nz/assets/Trans-Pacific-Partnership/Text/14.-Electronic-Commerce-Chapter.pdf, accessed 5 December 2017.
- 44.
Ibid, Article 14.8.4.
- 45.
United States of America and Korea, Free Trade Agreement, Article 15.8.
- 46.
Micheal Yilma K The United Nations data privacy system and its limits, International Review of Law, Computers & Technology, (2018).
References
Bennett C, Raab C, (2006) The Governance of Privacy: Policy Instruments in Global Perspective, MIT Press, 2006, in Greenleaf, Graham, “Sheherezade and the 101 Data Privacy Laws: Origins, Significance and Global Trajectories”, JlLawInfoSci 2; 2014, 23(1), Journal of Law, Information and Science 4.
Graham G (2014), “Sheherezade and the 101 Data Privacy Laws: Origins, Significance and Global Trajectories”, JlLawInfoSci 2; 23(1), Journal of Law, Information and Science 4
Greenleaf G Global Data Privacy Laws: 89 Countries, and Accelerating’ Privacy Laws & Business International Report, Issue 11-175 (2012)
Greenleaf, G (2017) Asia Data Privacy Laws – Trade and Human Rights Perspectives, University New South Wales
Michael Kirby (2011) The history, achievement and future of the 1980 OECD guidelines on privacy International Data Privacy Law, Volume 1, Issue 1, 1, p. 6
Micheal Yilma K (2018) The United Nations data privacy system and its limits, International Review of Law, Computers & Technology
Tene O (2013) Privacy Law’s Midlife Crisis: A Critical Assessment of the Second Wave of Global Privacy Laws, 74 OHIOST.L.J.1217, 2013, p. 1222
Thio L (1999) Implementing Human Rights in ASEAN Countries: “Promises to keep and miles to go before I sleep”, Yale Human Rights and Development Journal, Vol. 2, Iss. 1, Art. 1, pp. 2–5
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Walters, R., Trakman, L., Zeller, B. (2019). International & Regional Institutions. In: Data Protection Law. Springer, Singapore. https://doi.org/10.1007/978-981-13-8110-2_16
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