Global Data Privacy: The EU Way
Paul M. Schwartz
EU data protection law is playing an increasingly prominent role in today’s global technological environment. The cornerstone of EU law in this area, the General Data Protection Regulation (GDPR), is now widely regarded as a privacy law not just for the EU, but for the world. In the conventional wisdom, the EU has become the world’s privacy cop, acting in a unilateral fashion and exercising de facto influence over other nations through its market power. Yet, understanding the forces for convergence and divergence in data privacy law demands a more nuanced account of today’s regulatory environment.
In contrast to the established narrative about EU power, this Article develops a new account of the diffusion of EU data protection law. It does so through case studies of Japan and the United States that focus on how these countries have negotiated the terms for international data transfers from the EU. The resulting account reveals the EU to be both collaborative and innovative.
Finally, this Article identifies two overarching factors that have promoted the global diffusion of EU data protection law. The first such factor regards legal substance. Public discourse on consumer privacy has evolved dramatically, and important institutions and prominent individuals in many non-EU jurisdictions now acknowledge the appeal of EU-style data protection. Beyond substance, the EU has benefited from the accessibility of its omnibus legislative approach; other jurisdictions have been drawn to the EU’s highly transplantable legal model. In short, the world has weighed in, and the EU is being rewarded for its success in the marketplace of regulatory ideas.