EU Commissioner Didier Reynders recently spoke at the 2021 Transatlantic Conference. The participation of President Biden to the European Council showed how deep the alliance between the European Union and the United States is. We have a common willingness to work together to address the key challenges of our times: from the pandemic to the green transition. The recent visit of US Special Presidential Envoy for Climate, John Kerry, was a chance to discuss how to achieve our common objectives of a greener and cleaner future for all citizens. The U.S. trillion dollar recovery package focuses on green investment. It has similar priorities to the prior established European Green Deal. The digital transition requires the same commitment.
The 2021 edition of the Transatlantic Economy Report describes the importance of the digital transatlantic economy:
- How much of the global digital content does Europe and the USA produce together (75%);
- How important they are to one another for digitally-enabled services;
- And as exporters of these services to the world (the two largest).
Didier Reynders stated: “There is also a consensus that if the relationship is to flourish, both sides must overcome our differences, starting from some of the topic of today’s agenda. We are talking about taxes; antitrust laws; efforts to address disinformation; 5G security, and privacy rules, amongst others. But from where I’m standing, I can see more that binds us than divides us. And it is here where our focus must be: on data, for example, where the EU and the US are long-standing partners in promoting trusted data flows. There are, as you say, 55% more data flows via transatlantic cables than over transpacific routes. A large part of these flows are of personal data.”
Schrems II ruling
Last year, the Schrems II ruling by the European Court of Justice raised important questions on how to ensure protection of privacy when data crosses the Atlantic. What is mainly at stake here are complex and sensitive issues, for the US as for Europe, that relate to the delicate balance between national security and privacy. But Reynders believes there are possible solutions for the thousands of companies that rely on data flows every day to trade with their business partners, customers, or subsidiaries on the other side of the Atlantic. Finding this solution is a priority in Brussels and in Washington DC.
Reynders: “As you may have seen, Secretary Gina Raimondo and myself issued a common statement to reiterate our commitment to intensify negotiations to find a solution to ensure safe data flows. When I spoke to her a few days ago, we both agreed on the key importance of developing a successor arrangement to the Privacy Shield. A durable solution for EU-US data transfers is one that can deliver legal certainty to business and adequate protection to citizens. The only way to achieve this is to develop a new arrangement that is fully compliant with the Schrems II judgment. This is in our mutual interest. I do not underestimate the complexity of the issues we have to resolve.”
Reynders believes that, as like-minded partners, we should be able to find appropriate solutions on principles that are cherished on both sides of the Atlantic:
- Access to court;
- Enforceable individual rights;
- And limitations against excessive interferences with privacy.
And it should be possible for the US to develop solutions on these issues with a close partner such as the EU. Reynders thinks that there may be more common ground to work on these issues today than even just a few years ago.
Privacy is high on the US domestic agenda
The demand for modern privacy rules in the US is increasing both at state level – in California and a few weeks ago in Virginia – and at the federal level. A solution can be found also because the EU and the U.S. are like-minded partners, with shared democratic values, which we are both seeking to reinforce.
In Europe, we are working on many of the issues that the U.S.-led summit on democracy in 2022 will likely cover:
- Tech and corruption;
- As well as media pluralism and media literacy.
The Summit should serve as an opportunity for us to join forces to protect the principles we both hold dear. It is also on this basis and by working together, that the EU and the U.S. can cooperate with other like-minded partners, to create common global standards, as the EU has succeeded in doing with the GDPR. On international data transfers, for example, work is already ongoing in the OECD, building on the Japanese “data free flow with trust” initiative.
Reynders: “Just like the U.S., the EU is also firmly committed to international data flows. This is reflected in our ambitious agenda on facilitating trusted data transfers. For instance, at the moment, we are concluding our adequacy negotiations with South Korea, two years after having created the world’s largest area of free and safe data flows with Japan. This is also reflected in the approach we are taking in our trade negotiations, at both the bilateral and multilateral level. For example, in the trade agreement with the UK, we included a straightforward prohibition of data localisation requirements, and an emphasis on the importance of data flows. We want to make very clear that genuine data protection, on the one hand, and digital protectionism, on the other hand, are two very different things.”
Developing strong privacy safeguards and promoting the free flow of data are not opposite objectives, but complementary
And the GDPR provides the tools to achieve both these objectives. In the digital economy, mutual interests go far beyond data flows of course – from Artificial Intelligence, to hate speech and illegal online content, for example. As for privacy and data protection, these are challenges on which the U.S. and the EU can work together.
Reynders: “Your approach, like ours, must be built with your values intact, and from your democratic foundations upwards. On illegal content, for example, we should both agree that strong and effective laws that prohibit the spread hate speech online, do not endanger free speech. The EU’s work with the online platforms – via the Code of Conduct on Countering Illegal Hate Speech – is important in this regard. The U.S.’s 2019 “Raising the Bar Act” is openly inspired by our Code. The Digital Services Act is also inspired by the Code and strengthens certain aspects of it. We needed provisions in terms of transparency, and more feedback for users, this is what we have proposed. In exercising their freedom to decide which lawful content they allow to stay, platforms should be transparent in their choice. And they should exercise this choice taking into account the fundamental rights of all involved. Another challenge of the digital age is ensuring consumers’ safety, when they shop online.”
Over the past year, the Commission engaged with the eleven major platforms. This led to the removal of hundreds of millions of unfair listings: online scams, for example, or adverts for ineffective Personal Protection Equipment at inflated prices during the pandemic. In the U.S., the figures on COVID-19 related scams are even more staggering.
Didier Reynders: “As for our Code of Conduct, voluntary cooperation to protect consumers online can go a long way. This work has also inspired others in the international consumer protection network. However, we also want more stable progress in the long run. The new ‘know your business customer’ and ‘compliance by design’ principles in the Digital Services Act for example, should considerably reduce the risk of online scams and greatly contribute to better law compliance and safe products online. And I want to strengthen our work with the U.S. Federal Trade Commission on consumer protection. Because the challenges we face are the same. My personal experience with the U.S. pre-dates my current role. And perhaps because of this I am a firm optimist in the future success of the digital transatlantic partnership today. As host to the EU and NATO, Belgium has always played an important role in transatlantic diplomacy. It is home to the European headquarters of many major U.S. companies, whose trust is anchored here by our shared values. For these reasons I feel confident that our relationship can prosper in the digital age.”