构建“一带一路”个人数据跨境传输法律制度:分歧、共识与合作路径

Establishing Regional Legal System Regulating the Trans-border Personal Data Flow Among B&R Countries:Divergence, Consensus and Cooperative Approach

随着“数字丝绸之路”建设的深入,“一带一路”沿线国家间数字经济往来日益密切,大规模、高频次、跨法域的个人数据传输朝常态化方向发展。但当前各国在个人数据跨境传输领域立法层次不一、规则内容各异,构成区域数字经济发展的主要法律屏障。探索构建“一带一路”个人数据跨境传输法律制度是完善区域经济建设法律保障的题中应有之义。中国作为“一带一路”倡议发起者与中坚国,应对内加快个人数据传输立法进程,提高个人数据保护水平,对外参考已有国际社会经验,借助现有合作平台积极推动协商对话,遵循从“软法”到多边条约的分步进路,创建区域性安全、有序、高效的个人数据跨境传输法律制度,以此释放沿线数字经济活力,助力共同发展。

Since the promotion for the establishment of Digital Silk Road in the 21st century,the quantity and frequency of trans-border flows of personal data has remarkably increased among Belt and Road(B&R)countries.However,the legal rules of B&R countries concerning trans-border transfer of personal data are largely diversified and even contradict with each other in many areas.The complexity and inconsistency of current personal data exporting and importing rules as a result of coexisting various domestic rules,international rules,regional rules and bilateral rules,obviously add difficulties to the promotion of Digital Silk Road initiatives.Establishing a unified legal system which could offer clear and simple rules for trans-border personal data flow among B&R countries is definitely one of the best solution to end the chaotic.In this situation,China,as the leader as well as the key participant of B&R,should not only enhance her own personal data protection legal system based on social needs,but also seek to promote the legal cooperation and inter-trust on this issue with B&R countries.Based on the limited international experiences,it is proper to solve this problem by steps.Namely,working to reach a non-binding agreement(“soft law”)at the initial stage,and then negotiating further for multilateral convention regulating the trans-border personal data flow among B&R countries.Only in this way,orderly,efficient and safe personal data flows can be guaranteed and the fruits of digital economy can be shared by B&R countries.