During the last five years, a combination of legal and economic forces have re-invigorated the debate over the protection of personal information across borders. By the end of the 1990s, the Internet and electronic commerce held great promise for global economic growth and deepened the trend toward transborder data flows. At the same time, divergent legal protection for personal information threatened to disrupt those data flows.
In 1998, the European Union’s Directive 95/46/EC requiring the harmonization of data privacy law within the Member States entered into force. The EU Directive took a comprehensive legal approach to the protection of data privacy and required Member States to block data flows to countries that did not “adequately” protect personal data.
Most European attention initially focussed on the United States where the protection of data privacy followed a weaker approach with narrow sectoral laws and a reliance on self-regulation. Global businesses were very concerned about potential disruptions to their transfers of personal information to the United States. Yet, the European Union could not ignore the rest of the world and could not discriminate against US trading partners. However, the status of data protection in many parts of the world, and especially in Latin American, was largely unknown within Europe and the upper part of North America.
Transmision internacional de datos personales y proteccion de la privacidad , thus, began as a brilliant thesis by an outstanding young Argentinian scholar-lawyer for the Graduate Program at Fordham University School of Law. The thesis started as an exploration of privacy issues for data transfers from Europe to Latin America. In that earlier work, Dr. Pablo Palazzi raised so many excellent points that he simply had to write the book! This result is now a pathbreaking analysis of the emergence of Latin American data protection law and international data flows.
Dr. Palazzi shows that Latin America has chosen to follow the European approach to data privacy rather than the alternative ad hoc sectoral approach found in the United States. He carefully traces the origins and historical context for this transplantation of data protection in Latin America. He then offers a cogent treatment of the various protection mechanisms to reassure the European Union of the level of protection in Latin America, particularly in Argentina and Chile. For many, Dr. Palazzi’s discussion of the new Argentinian law and implementing regulation will also be of practical importance. But, for those outside Argentina, the discussion gives unprecedented insight into one of the first Latin American enactments of data privacy legislation. In addition to the analysis of these emerging laws, the book also examines the utility of a Safe Harbor arrangement for Latin American countries as well as the enforceability of standard contracts. Collectively, Dr. Palazzi’s discussion will help preserve international data flows to the region and support the economic revival of Argentina.
In short, Transmision internacional de datos personales y proteccion de la privacidad makes a vitally important contribution to the field of data privacy law and is essential reading for anyone involved in international data transfers with Latin America. Indeed, the study has already generated great interest among European and American policy makers and is sure to have a significant impact on the international debate.
Joel R. Reidenberg
Professor of Law
Fordham University School of Law, New York, NY (USA)