The echoes of the first shots fired against Google Analytics by the Austrian Data Protection Authority have not yet died down in the Analytics War, that another attack came from the French front. On 10 February, the Cnil declared that it shared the reading of the Gdpr according to which the use of Google’s data aggregation system allows an illegal transfer of data to the US. The reactions of the American forces were not long in coming, with Meta’s adamantine declaration in a report filed with the SEC, according to which it might be complicated to continue operating in Europe on account of data protection legislation. Google and the other Big Tech companies have not reacted just yet. However, it is probably only a matter of time before a “coalition of the willing” is born to defend the industrial interests of a sector that is strategic for the US, also in terms of international politics by Andrea Monti – published initially in Italian on Strategikon – an Italian Tech blog
The Atlantic, however, is not the only front that the EU must defend because the sound of war drums begins to be heard from the Pacific: Yahoo!Japan (which is not part of the American Big Tech) has announced that from 6 April 2022, its services will no longer be usable by citizens located in the European Economic Area and the United Kingdom.
The Faq published to clarify the news explains the choice by referring generically to the difficulty in continuing to provide the service in the European geographical area. Despite the cryptic nature of the statement, it is entirely plausible that the sudden hyperactivity of the EU data protection supervisors in the extraterritorial application of the GDPR and, indeed, the cost of compliance (not only) with the data protection legislation have raised concerns about excessive European ‘encroachments’ in the East as well as in the West (where they are, instead, a certainty).
Not too long ago, Japan signed the free trade agreeement with the EU, in the ambit of which the Commission had recognized the adequacy of the Japanese legal system concerning the regulations on the processing of personal data, thus allowing an easier circulation of information and the increase of commercial relations. If, however, Japanese companies will prefer to turn to other markets in the (neglected and undervalued in Europe) Indo-Pacific area because of the costs generated by EU regulations, the free trade agreement will be reduced to a lifeless piece of paper. We can continue to tell ourselves that the world cannot do without Europe (or rather the EU), but, quite simply, this is not the case.
At the same time, European companies that started doing business with Japan based on the trade agreement could suddenly find their borders closed. Not so much on entering Japan as on leaving the EU if Brussels decides to revise its adequacy decision and thus revoke the status of what we might improperly call the ‘favoured nation’ status negotiated with Tokyo.
Even if this happens, one might think that a single country’s isolation is just a speck that will not cause much of a problem. That may be true, but if one small stone starts to roll, it can turn into an uncontrollable landslide and cause even more damage to our economic system, a damage that we certainly do not need.
It is too early to say whether other Japanese companies will follow Yahoo! Japan’s choice. However, the signal is clear: what we might call the ‘legal imperialism’ of the EU, according to which whoever wants to deal with the Union must accept its rules in their entirety, is showing the first signs of weakening. This assessment is all the more true if we persist in practising a religious culture of rights, turning them into fetishes to be worshipped regardless of any assessment of their economic and political sustainability.
Before the worst happens, therefore, it would be necessary for the member states and the EU institutions to start rethinking the strategy based on lawfare, the openly political use of the law in international relations. This issue does not only concern the GDPR but, more generally, the approach according to which other jurisdictions should abide to European rules as a precondition for business. In all its forms, Imperialism only works (as long as it works) on one assumption: having the force to impose it. However, the EU still needs (a lot of) training before it can ‘flex its muscles’ to such an extent that someone impresses itself.