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A Study on the Regulation of Cross-border Transfer and Distribution of Data under the WTO Agreement

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(3), pp.125-200
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 29, 2024
  • Accepted : August 24, 2024
  • Published : August 31, 2024

Jongho Kim 1

1호서대학교

Accredited

ABSTRACT

Under the digital economy, the provision of objects or services often involves a network of diverse entities that transcend national borders, making the flow of information between those entities indispensable. Therefore, securing free circulation of menstrual data has become an important issue. However, there may be trade-offs between free circulation of menstrual data and various public policy purposes. For example, there is a movement to regulate the free circulation of cross-border data from the perspectives of effective implementation of regulations such as personal information protection, cyber security, and financial supervision, industrial policy, ELSI, and safety guarantee, and to demand data localization. In addition, which public policy purposes are given more importance among various public policy purposes differs in each country and region. Maintaining a legal structure to maximize these benefits has become an important policy task in each country, but it is also required to maintain policies to realize various domestic public policy objectives such as privacy protection and security, specifically data Regulatory interventions are being implemented in the form of localized regulations and other forms. In particular, when it comes to data distribution, the United States, the European Union (EU), and China constitute three different areas. The United States has attempted to limit restrictions on the free flow of data. For example, the Korea-US Free Trade Agreement, which came into effect in 2012, established regulations for the free distribution of information in e-commerce for the first time. Meanwhile, in the EU, protection of personal data is considered a basic right, and an institutional system aimed at protecting personal data has been established. In October 1995, the 'Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data' (Data Protection Directive) was adopted, and Article 25 of this Directive stipulates that transfer of personal data to a third country is subject to the provisions of the relevant country. It was stipulated that it could only be implemented if the three countries secured an adequate level of protection. Following this, the ‘Rules on the Protection of Natural Persons Relating to the Handling of Personal Data and on the Free Movement of Such Data’ (General Data Protection Regulations: GDPR), adopted in April 2016, stipulate that a ‘sufficient level of protection’ for personal data is sufficient to protect personal data outside the EU. It is stipulated as a condition for transfer. In addition, in Article 37 of China’s Network Security Law enacted in 2017, personal information and important data collected and generated by operators of important information infrastructure during operations within the People’s Republic of China must be preserved domestically. It emphasizes national security, saying that in cases where it is necessary to provide information overseas due to business necessity, a security assessment must be conducted in accordance with the law jointly enacted by the national network security information agency with the relevant agencies of the State Council. In this situation, the challenge is how to specifically coordinate the free cross-border data circulation and various public policy purposes. The WTO agreement regulates data circulation between countries from the perspective of digital trade or cross-border e-commerce. Among them, the General Agreement on Trade in Services (GATS), the most important of which, faces several limitations in regulating cross-border data circulation, but the accumulation of WTO precedents and interpretive discussions suggests an appropriate balance between liberalization of cross-border data flow and ‘trustworthiness.’ It provides important clues to review. Additionally, in the FTA field, new rules that cannot be agreed upon at the WTO level are being successfully introduced. In particular, the CPTPP agreement provides a model in the sense of finding a balance by establishing regulations directly targeting e-commerce and cross-border data distribution. Ultimately, I believe that in order to promote free cross-border data circulation and coordination of public policy purposes, it is important to create an opportunity for international harmonization based on each public policy purpose. Therefore, we would like to examine the phenomenon of data transfer and distribution between countries at the global level, known as the World Trade Organization (WTO).

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