In artificial intelligence (AI) and data privacy regulation, the idea of a one-size-fits-all approach is increasingly challenged by the complex, multi-layered reality of global operations.
This is particularly evident when dealing with clients that operate in diverse legal jurisdictions. Consider the case of an active client of mine, for example, operating in 107 different legal environments. Crafting one single data compliance and governance strategy for such a client is not only daunting, but verges on impracticality. This is due to factors like national culture, legislative frameworks, levels of legal maturity concerning data privacy, and varying national attitudes towards privacy. The European Union’s General Data Protection Regulation (GDPR) is a prime example of this complexity, especially considering Article 23, which allows member states to tailor certain aspects of the GDPR to reflect their national differences.
5 Reasons This Approach Is Impractical
Here are some of the reasons that a universal approach simply does not work.
1 – Cultural Variations in Privacy
Culture deeply influences how we value and perceive privacy. For instance, in Europe, due to historical contexts like state surveillance, there’s a heightened sensitivity and importance placed on personal data privacy (Greenleaf, G. (2012). “The Influence of European Data Privacy Standards Outside Europe”). This contrasts with other cultures, where privacy might be viewed through different lenses, thus impacting how a universal data privacy strategy would be accepted and implemented.
2 – Diverse Legislative Frameworks
Each country’s unique socio-political environment shapes its legislative framework. The U.S., for example, has a sector-specific approach to data privacy, differing significantly from the GDPR’s comprehensive, rights-based approach (Kuner, C. (2007). “Data Protection Law and International Jurisdiction on the Internet”). This makes a global, unified approach to data privacy compliance highly challenging.
3 – Varying Levels of Legal Maturity in Data Privacy
The development stage of data privacy laws differs across countries. Some have well-established, sophisticated data protection laws, while others are in the nascent stages of developing their legal frameworks in this domain (Bygrave, L. A. (2014). “Data Privacy Law: An International Perspective”). This disparity therefore brings about the need for a more nuanced, tailored approach to data privacy regulations.
4 – National Attitudes to Privacy
The prioritisation of privacy varies from one nation to another. Countries emphasising individual rights may advocate for stringent data privacy laws, while others may prioritise economic growth over individual privacy rights (Bennett, C. J., & Raab, C. D. (2006). “The Governance of Privacy: Policy Instruments in Global Perspective”).
5 – Imposition of National Views on Global Frameworks
There’s a tendency for dominant countries to try to extend their data privacy standards globally. The GDPR is an example of this, influencing international data privacy policies even outside the EU (Kuner, C. (2013). “The European General Data Protection Regulation and International Data Flows”). However, this can lead to resistance from countries with different privacy perspectives.
How the GDPR Acknowledges This
The GDPR itself (particularly Article 23) acknowledges the impracticality of a rigid, one-size-fits-all approach.
This article allows EU member states to modify certain GDPR provisions to reflect their specific national needs. This allowed flexibility is a tacit admission that even within a relatively homogenous entity like the EU, the nuances of national identity and legal tradition play a critical role in data protection.
For instance, the GDPR’s approach to data protection in Portugal differs from that in Bulgaria, not just in implementation but also in how the cultural and legal nuances of each country shape their data privacy laws.
Attempts Have Been Made
Historically, attempts at a unified data privacy approach have faced significant hurdles. The Safe Harbor agreement between the EU and the U.S. sought to standardise data transfers between these regions but eventually was invalidated by the European Court of Justice due to concerns over U.S. surveillance practices and the inadequacy of U.S. privacy protections (Schwartz, P. M., & Peifer, K. N. (2017). “Transatlantic Data Privacy Law”).
This example illustrates the complexities involved in creating a universal data privacy standard that satisfies diverse legal and cultural expectations.
In conclusion, while the aspiration for a global, standardised data privacy framework is understandable, its practicality is questionable. The diversity in cultural values, legal systems, stages of legal maturity, and national attitudes towards privacy simply means that a more adaptable, multi-faceted approach to data privacy regulation is necessary.
A framework like GDPR, with its provisions for national variances, acknowledges this need for flexibility and contextualisation. The future of effective and efficient data privacy regulation lies not in uniformity, but in a balanced, respectful, and context-sensitive harmonisation of diverse global needs and perspectives.
By Nigel Gooding
LLM Information Rights Law & Practice. FBCS
PG Dip Information Rights Law and Practice
PG Cert Data Protection Law and Information Governance
PG Cert Management