The national and international regulatory framework for cross-border data transfers

Abstract

The volume of personal data transfers across borders is extensive, and states have adopted varied approaches to regulate such transfers. This paper aims to explore the most suitable national and international regulatory frameworks for transferring data across borders. At the national level, the paper illustrates the damages caused by data localisations requirements, contending that restrictions on data transfers across borders undermine data protection and cause a severely adverse effect on innovation and the economy. The author also argues that putting appropriate regulatory safeguards in place is more effective in achieving data protection instead of depending on arbitrary localisation requirements. At the international level, the paper recognises the current inability of international cooperation that has led to a heterogeneous framework for transferring data across borders, which examines possible international regulatory frameworks. Furthermore, the paper criticises the proclivity to view data transfers as a trade matter rather than a rights-based one.

The paper concludes that the conditional transfers approach is the most reliable national regulatory approach to cross-border data transfers. At the international level, the author argues that a lot of proactive work is needed to reach an international treaty - along with model law - which regulates cross-border data transfers and an independent international organisation monitoring compliance and promoting better protection standards.