Is Trade a Barrier to Privacy? A Comparative Analysis of the Right to be Forgotten under the Comprehensive Economic and Trade Agreement between Canada and the EU

Abstract

The commoditization of personal information has led to the creation of trade agreements that are no longer concerned with purely trade issues. The newly drafted Comprehensive Econom-ic and Trade Agreement (‘CETA’) characterizes this fact as it also protects individual rights such as those found in privacy regimes between Canada and the EU. CETA allows either party to favour privacy rights protections at the derogation of trade obligations. This with the caveat that such protection measures do not represent a disguised restriction on trade (‘DRT’). One of the main privacy rights enjoyed in the EU, the Right to be Forgotten (‘RTBF’), high-lights a potential area of imbalance in the respective privacy approaches between the EU and Canada and a potential DRT thus challenging the future protection of said right. The com-plexity of the RTBF comprises the interrelated issues of adequacy, jurisdiction and cross bor-der data flows as scope items for legal comparison in order to identify imbalances in respective privacy regimes leading to discovery of DRTs. Through functional comparative analysis of RTBF and its related issues it is discovered that there is a functional imbalance between the EU and Canadian privacy regimes. Further analytical comparative analysis highlights that due to this imbalance, the RTBF qualifies as a discriminating DRT that affects trade due to placing restrictions on cross border data flows, presupposing GDPR-level adequacy, and cre-ating a standalone jurisdictional space. DRTs are also found to be prevalent in the CETA digital services of telecoms, financial and E-Commerce which highlights practical challenges to the RTBF implementation in its current GDPR form. The imbalance and existence of DRTs also represents a unique opportunity whereby under CETA, Canada and the EU can essentially leverage one another’s privacy regimes with the goal of jointly developing a hybrid solution that acts as the privacy middle ground between trading partners.