AbstractThis thesis examines and compares how the EU, US and China (mainland) reconcile the competing rights and interests of individuals and Information Communication Technology (ICT) companies in personal data processing activities. Cross-jurisdictional empirical evidence suggests a common social problem among the three jurisdictions: the divergent rights and interests of individuals and ICT companies in data processing activities and the power asymmetry between them suggest an urgent need to seek balance between their rights and interests. The examination of privacy theories from both Western and Chinese literature suggests a common conceptual framework for privacy, emphasising its function to guarantee the necessary social environment and conditions for free social interaction. This thesis argues that data protection is different but closely linked with privacy, providing the guarantee of such social environment at an additional layer – the design and architecture of the digital environment. This conceptual framework can better identify the power asymmetry between data subjects and controllers in the digital era.
Having set out the conceptual basis, the comparative research examines how each jurisdiction reconciles the competing rights and interests between individuals and ICT companies. The comparative findings suggest that despite the different approaches to reconciling such competing rights and interests, especially the different balancing paradigms at the constitutional level; the balancing elements in legislation (either special data protection law or sectoral laws containing privacy and data protection elements), regulations and judicial discourse show many similarities in the three jurisdictions. A common balancing framework can be extracted from these similarities. They could provide a preliminary basis for communication and negotiation among policymakers from the three jurisdictions. The typicality and influence of the privacy and data protection regimes in the EU, US and China may also indicate a more generalised applicability of the common balancing framework and other elements in the comparative findings.
|Date of Award||23 Jun 2020|
|Supervisor||Andrew J Charlesworth (Supervisor) & Paula Giliker (Supervisor)|
- data protection
- comparative law
- European Union (EU)
- United States
- People's Republic of China