International Trade Law and Data Ethics : Possibilities and Challenges

Governments increasingly adopt various measures to achieve compliance with data ethics principles to reduce misuse of data-driven technologies and promote good digital and data governance. However, some of these measures restrict cross-border trade in digital technologies and services, thereby implicating various obligations contained in international trade agreements. This chapter investigates if international trade agreements (focusing on the General Agreement on Trade in Services (‘GATS’) of the World Trade Organization (‘WTO’)) provide sufficient policy space to governments to implement data ethics-related measures, despite their potential trade-restrictive impact. It argues that general exceptions (GATS art XIV) can be interpreted in an evolutionary manner to cover several data ethics concerns. However, in doing so, WTO tribunals are likely to face uncertainties due to the regulatory diversity across countries. In particular, examining the core rationale underlying data ethics-related measures, determining their technological efficacy, and identifying the least burdensome and trade-restrictive means to realise policy goals enshrined in data ethics frameworks, remain highly challenging. In light of these uncertainties, this chapter recommends that the WTO must better accommodate evolving norms, standards and best practices on data ethics of other international institutions and relevant transnational and multistakeholder bodies