MENGHADAPI DATA PRIVACY : PENGARUHNYA TERHADAP ORGANISASI

Transcription

1 MENGHADAPI DATA PRIVACY : PENGARUHNYA TERHADAP ORGANISASI DR. SINTA DEWI ROSADI, SH., LL.M KETUA CYBER LAW CENTRE, FAKULTAS HUKUM UNPAD PROTECTION, JAKARTA 28 MARCH, 2018 Introduction Grow Global Digitalization of Information Data Collecting, Storage and Use Interconnecting Technologies Grow Marketing & Business Process Grow 1

2 Personal Data is the New Oil in Our Digital World The trade in personal data is a massive business. There are privacy rights that include the right to determine whether or not to provide personal data. Data privacy law systematically regulate the use of information about people / personal information (Greenleaf, 2014) 2

3 Data Protection & Market Effect during The Expansion of Int. Trade Robust Data Protection in Transborder Data Flows (+) Market Effect Weak Data Protection in Transborder Data Flows Why? (-) Market Effect WHY Affect The Market? The restriction from some countries to conduct cross border data transfer with other countries, without adequate data protection level. - Ensuring privacy is protected. - Guarding against data protection risk. 3

4 The Problem National/Regional Adequacy Requirement for Data Transfer VS The No Trade Barriers norm among WTO member states How does a state can ballace the confllict? International Level UN appointed a Special Rapporteur on Privacy Right, EU enacted new regulation: General Data Protection Regulation (GDPR). Data Privacy rules has been included in several international trade agreement. EU - USA data protection agreement. National Level By 2017, 120 countries have enacted data privacy law. Pay Attention to Rapid Growth of Data Privacy Law 4

5 EU approach in Adequacy, is one of the keys to open cross boundary data door to EU member state. Once a state takes the key, the trade barrier is eliminated. Taking EU Approach on Adequacy Requirement EU Adequacy Rules Jurisdiction where Data Recipient located deemed to provide adequate data protection principle. Data Exporter puts in place appropriate safeguards. 5

6 ADEQUACY ASSESMENT EU Personal Data Commission will Decide adequacy Level. Factors taken into consideration: Rule of Law and Legal Protection of Human Rights and Fundamental Freedom. Access to transferred data public authorities Existence of Effective functioning of DPAs International Commitments and other obligations in relation to the protection of personal data. Integrating Data Privacy Issue to WTO Regime Data Privacy issue is not yet being regulated in WTO. Only safeguard of Individual Privacy has been on the GATT s regulation (Article XIV of GATT). Article XIV General Exception; Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; 6

7 Considering the Adequacy Rule is a trade barrier, WTO should take action on integrating Data Privacy to its regulation. HOWEVER, IN APPLYING THE MEASURES, WTO MUST MEET SEVERAL REQUIREMENTS THAT THE MEASURES IS NECESSARY AND MUST NOT APPLIED IN A MANNER OF ARBITRARY OR UNJUSTIFIABLE SO THAT DISCRIMINATE BETWEEN COUNTRIES 7

8 Conclusion Digitalization of information & interconnecting technologies has become: important platform for international trade; and a potential to produce economic gains however due to the marketing & business practices that collect, storage and transfer personal data cross border, many countries apply policy restriction in order to ensure data privacy. WTO apply privacy as general exception as long as it does not discriminate between member countries. 8