The draft EU - New Zealand trade agreement contains a sweeping cross-border data flow commitment, which goes way beyond such commitments in earlier trade deals. The commitment comes with a safeguard – an exception to the commitment, a carve out – for the protection of personal data and privacy. This safeguard seems strong from one angle, and weak from an other. The digital trade chapter also has a weak right to regulate clause.
In 2012 the European Commission decided that New Zealand adequately protects personal data. As a result, in the case of New Zealand, the strength of the data flow commitment and of the exception to the commitment may not matter much.
However, the EU commission expressed its intention to use the sweeping commitment and the strong / weak exception also in free trade agreements (FTAs) with countries without adequate data protection. This seems imprudent.
Below I will discuss the right to regulate clause, the commitment, and the exception, and will note tensions between supranationalisation and democracy.
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