Regulatory Autonomy and Privacy Standards Under the GATS

Privacy plays an ever increasing role in the virtual world of electronic services. Privacy rules of a WTO Member trying to achieve a high level of data protection, however, could jeopardize the cross-border delivery of electronic services. Such kind of rules cause the risk of being qualified as quantitative restrictions and, therefore, of not complying with Article XVI or Article XVII of the GATS. In such a situation, a WTO Member introducing high level privacy standards has to assess whether the respective legal regime can be justified as being in line with international standards evaluated in the light of the domestic regulation clause (Article VI of the GATS) or constitutes a reservation as of the exception rules of GATS-consistent privacy laws or national public morals/order interests (Article XIV (a) and (c) of the GATS)