Problem Definition, Structure and Methodology

Abstract

This Chapter begins by outlining the problem in defining and understanding the interrelationship between privacy and data protection law in Australia, India, Indonesia, Japan, Malaysia, Singapore, Thailand and the European Union. This Chapter will demonstrate and discuss how the concept of privacy is considered an important feature of the modern era. In other words, it is argued that there has been wide acceptance and a convergence of privacy that now transcends, government, countries, cultures religion over the Internet. This convergence of the concept of privacy, has resulted in nation states adopting to varying degrees, data protection and privacy laws. However, it will be highlighted that the current day approach needs further development and greater convergence and harmonization of data protection law and policy at the international level. This will be important as the trade in personal data continues to grow.

It will be argued in this Chapter that the privacy and data protection law of these jurisdictions is far from settled. It is further argued that data protection and privacy law has two dimensions. First, is to protect personal data and information of individuals, as a human right. Second, is balancing the protection of personal data with current and future economic activity (trade) of personal data. Moreover, data protection and privacy cannot be restricted to a single country or region of the world. It is international, and has been underpinned by Internet technology and infrastructure that knows no [national] borders. Thus, these laws, while being developed by nation states for their own particular sovereign needs, the internationalization of the Internet poses significant challenges to the future law and policy in this area. They are likely to continue to be challenged and require reviewing and updating, as technology continues to change. Being a recent addition to the law, data protection is also challenging and is arguably in conflict with other areas of the law, such as intellectual property, competition, transnational commercial contract law, and cybercrime-security law. This Chapter also highlights the structure of the overall book in recognizing and responding to these differences in data protection and privacy law. It argues that data protection is a tool of Internet privacy. At the recent June 2019 meeting of the G20, the leaders’ declaration called for respect of national and international regulation of data and technology. The importance of this declaration highlights the importance for governments to balance innovation with protection of personal data. To achieve this, the book reinforces the G20 leaders position, and goes a step further, by recommending that an international Model Law be developed, similar to international trade law. Also, consideration to an international treaty or convention will support any model law and go some way to closing the gaps and tensions between country data protection law. Thus, this book calls for greater legal convergence and harmonization in this emerging and complex area of law and policy. The book also identifies that personal data being afforded an intellectual property right. It also highlights the tension between data protection and competition law and cybersecurity/crime law. It will also be argued that data protection can fall within the current transnational international contract legal framework. Adopting data protection within these areas of law, provide valuable tools to strengthen the governance, control and regulation of personal data.