Information Law and the Digital Transformation of the University: Navigating Digital Sovereignty, Data Governance, and Access to Research Data
Trade and Privacy: Complicated Bedfellows? How to achieve data protection-proof free trade agreements
Svetlana Yakovleva is a Postdoctoral Researcher at the Institute for Information Law (IViR) of the University of Amsterdam. She also works part-time as a Senior Legal Adviser in Privacy, Data and Cybersecurity practice at De Brauw Blackstone Westbroek in their Amsterdam office and serves on the Editorial Board of the journal Legal Issues of Economic Integration. Her research cut across different areas of law, such as privacy and data protection, European and international trade law, competition, consumer and cybersecurity law, with a particular focus on data governance. Svetlana's PhD dissertation combined the very different perspectives of international trade and EU data protection law and applied them together to cross-border data flows.
Svetlana regularly speaks at international conferences in Europe and the United States, such as Computers, Privacy and Data Protection (Brussels) and Privacy Law Scholars Conference (USA). She gave public lectures at Vanderbilt University (USA) and at the Law and Technology Center of the University of Hong Kong Faculty of Law. Her academic work has been published in peer-reviewed and edited journals in Europe and the United States, such as Common Market Law Review, World Trade Review and University of Miami Law Review.
Svetlana holds a PhD in law (cum laude) from the University of Amsterdam. She received a degree in law (with distinction) from the National Research University Higher School of Economics (Moscow) in 2005, an LL.M in Law and Economics (EMLE) from the Erasmus University, Rotterdam and the University of Hamburg in 2007, and a research master in Information Law from the IViR in 2016. During her research master studies Svetlana spent a semester at New York University School of Law.
Svetlana is fluent in English and Russian, and has working knowledge of French, Dutch and German.
| Irion, K., Kaminski, M., Yakovleva, S.|
Privacy Peg, Trade Hole: Why We (Still) Shouldn’t Put Data Privacy in Trade Law
2023, visited: 28.03.2023.
A Response to Profs. Anupam Chander & Paul Schwartz’s Privacy and/or Trade.
Some principles are not well suited for negotiation through the international trade regime. Or rather, the international trade regime has never been the right forum for negotiating or enforcing human rights. The World Trade Organization’s (WTO’s) current approach to data privacy law both instantiates and illustrates this: it brackets data privacy as something trade law cannot well address, while illustrating the ways in which trade law superimposes its prioritization of trade liberalization atop other public values. Trade’s core framing prioritizes economic over human rights values. Beyond ensuring non-discriminatory treatment, trade law remains, in our view, the wrong place for both defining and enforcing rules on cross-border flows of personal data. Thus, while we welcome with open arms the thoughtful attention Professors Anupam Chander and Paul Schwartz pay to the current transnational struggle over data flows and digital trade, we cannot join in their optimism that trade law is the right forum for arbitrating it.
| Drechsler, L., Yakovleva, S.|
Contribution to the public consultation on the Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR
| van Hoboken, J., Yakovleva, S.|
The Algorithmic Learning Deficit: Artificial Intelligence, Data Protection and Trade
In: Big Data and Global Trade Law, Mira Burri (ed.) Cambridge University Press, 2021, Chapter 10, pp. 212-230, 2022.
| Yakovleva, S.|
Privacy and Data Protection in the EU- and US-led Post- WTO Free Trade Agreements
In: pp. 95-115, 2020, (Chapter in: Coherence and Divergence in Services Trade Law, ed. R.T. Hoffmann & M. Krajewski).
The chapter addresses privacy and data protection in FTAs. It takes stock of the evolution of provisions on privacy and data protection in the post-WTO FTAs and FTAs currently under negotiation relying on EU- and US-led FTAs as an empirical basis. The chapter evaluates the trends and patterns of the development of these provisions and provides an outlook for the upcoming negotiations on electronic commerce at the WTO. It highlights the evolution of provisions on privacy and personal data protection in general exceptions, financial and telecommunications chapters, chapters on electronic commerce and digital trade. After identifying trends in the design and wording of these provisions in the EU- and US-led FTAs the chapter concludes that both trading partners tend to prefer their own template for regional FTAs.
| Yakovleva, S.|
Personal Data Transfers in International Trade and EU Law: A Tale of Two ‘Necessities’
In: The Journal of World Investment & Trade, pp. 1-39, 2020.
Cross-border flows of personal data have become essential for international trade. EU law restricts transfers of personal data to a degree that is arguably beyond what is permitted under the EU’s WTO commitments. These restrictions may be justified under trade law’s ‘necessity test.’ The article suggests that they may not pass this test. Yet, from an EU law perspective, the right to the protection of personal data is a fundamental right. An international transfer of personal data constitutes a derogation from this right and, therefore, must be consistent with another necessity test, the ‘strict necessity’ test of the derogation clause of the EU Charter of Fundamental Rights. This article shows how a simultaneous application of the trade law and EU Charter ‘necessities’ to EU restrictions on transfers of personal data creates a Catch-22 situation and sketches the ways out of this compliance deadlock.
| Arnbak, A., Geursen, W., Yakovleva, S.|
Kaleidoscopic data-related enforcement in the digital age
In: Common Market Law Review, vol. 57, no. 5, pp. 1461-1494, 2020.
The interplay between competition, consumer and data protection law, when applied to data collection and processing practices, may lead to situations where several competent authorities can, independently, carry out enforcement actions against the same practice, or where an authority competent to carry out enforcement in one area of law can borrow the concepts of another area to advance its own goals. The authors call this “kaleidoscopic enforcement”. Kaleidoscopic enforcement may undermine existing coordination mechanisms within specif ic areas, and may lead to both the incoherent enforcement of EU rules applicable to data, and to sub-optimal enforcement. An EU level binding
inter-disciplinary coordination mechanism between competition, consumer and data protection authorities is needed. Now the Commission has announced ambitious plans to enhance the coherent application of EU law in several areas, it is the perfect time to work towards creating such an enforcement mechanism.
| Arnbak, A., Geursen, W,W,, Yakovleva, S.|
Drie mogelijke boetes van mededingings-, consumenten- en persoonsgegevensautoriteiten voor hetzelfde datagebruik
In: Tijdschrift Mededingingsrecht in de Praktijk, no. 2, pp. 30-37, 2020.
Door de toename van datagebruik door ondernemingen is er sprake van convergentie tussen het mededingings-, consumenten- en gegevensbeschermingsrecht. Er kan dan parallelle handhaving plaatsvinden ten aanzien van één en dezelfde handeling door dezelfde onderneming door drie verschillende autoriteiten. Dat noemen wij caleidoscopische handhaving. Dat heeft volgens ons verschillende keerzijden, waaronder het risico op overhandhaving door drie afzonderlijke procedures van drie afzonderlijke autoriteiten en mogelijk drie boetes. Wij onderzoeken in dit artikel waarom het ne-bis-in-idem-beginsel niet van toepassing is en het beginsel van eendaadse samenloop evenmin (net als in de recente Marine Harvest gun-jumping zaak), waardoor proportionaliteit overblijft.
| Irion, K., Yakovleva, S.|
Pitching trade against privacy: reconciling EU governance of personal data flows with external trade
In: International Data Privacy Law, vol. 10, no. 3, pp. 201-221, 2020.
This article positions EU’s external governance of personal data flows against the backdrop of the international controversy on digital trade versus strict privacy laws. Now that the EU has defined its position on horizontal provisions on cross-border data flows and personal data protection, it is both timely and essential to reassess its strategy on the international transfers of personal data in the purview of its future trade agreements. For its own normative approach and regulatory autonomy, the EU has a pivotal role to play in shaping the interface between trade and privacy before the ‘free trade leviathan’ can restrict the policy choices not only of individual states but also of the EU itself. Our contribution aims to break through the present compartmentalization of privacy scholarship and trade lawyers because it situates personal data flows in both disciplines.
| Yakovleva, S.|
Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy
In: University of Miami Law Review, vol. 74, no. 2, pp. 416-519, 2020.
Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves noneconomic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.
| Irion, K., Yakovleva, S.|
Toward Compatibility of the EU Trade Policy with the General Data Protection Regulation
In: AJIL Unbound, vol. 114, pp. 10-14, 2020.
The European Union’s (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member’s restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights and the recently adopted General Data Protection Regulation (GDPR).
| Yakovleva, S.|
Should Fundamental Rights to Privacy and Data Protection be a Part of the EU's International Trade "Deals"?
In: World Trade Review, vol. 2018, pp. 477-508, 2017.
This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks.
Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.
| Yakovleva, S.|
Literature review on the use of licensing in library context, and the limitations this creates to access to knowledge
In: vol. 2017, 2017.
The dual purpose of this literature review is, first, to identify and summarise limitations that result from the use of copyright licences in a library context, and, second, to illustrate these limitations with specific examples available in both the
academic and grey literature. The licences discussed in the reviewed literature deal essentially with access to, and use of, digital content.
| Irion, K., Thompson, M., van Hoboken, J., Yakovleva, S.|
A Roadmap to Enhancing User Control via Privacy Dashboards
2017, (Amsterdam / Hong Kong: IViR, 2017.).
This report presents and draws on multidisciplinary insights into what characterises effective user control over the collection and use of personal data. User controls arise from the interplay of a number of conditions. These are partly technical but also connected to different aspects of user behaviour, the intricacies of design, as well as the internal and external incentives in privacy governance that exist today. Our review of the state of research underscores that devising effective user controls require close collaboration between different disciplines, clear regulatory guidance and scientifically-backed assessments.
| Bartl, M., Irion, K., Yakovleva, S.|
Trade and privacy: complicated bedfellows? How to achieve data protection-proof free trade agreements
Study commissioned by the European Consumer Organisation/Bureau Européen des Unions de Consommateurs (BEUC), Center for Digital Democracy (CDD), The Transatlantic Consumer Dialogue (TACD) and European Digital Rights (EDRi), 13 July 2016, Amsterdam.
The results of the study were widely covered in the Dutch and European media:
‘Privacy onvoldoende gewaarborgd in handelsverdragen EU‘, nu.nl, 13 juli 2016
‘EU stelt privacy burgers onvoldoende veilig‘, Digital Telegraaf, 13 juli 2016
‘EU stelt privacy burgers onvoldoende veilig‘, Einhovens Dagblad, 13 juli 2016
Monika Ermert, ‘Transatlantischer Zoff: Digitaler Datenschutz oder digitaler Protektionismus?‘, 16 July 2016, heise.de
Léa Auffret, ‘Why privacy safeguards in trade deals need urgent improvement‘, 20 October 2016, beuc.eu
| Irion, K., Yakovleva, S.|
The Best of Both Worlds? Free Trade in Services and EU Law on Privacy and Data Protection
In: European Data Protection Law Review, no. 2, pp. 191-208., 2016, ( Prepublication version of the article. ).
The article focuses on the interplay between European Union (EU) law on privacy and data protection and international trade law, in particular the General Agreement on Trade in Services (GATS) and the WTO dispute settlement system. The argument distinguishes between the effects of international trade law in the EU legal order on the one hand, and, on the other hand, how EU data protection law would fare in a hypothetical challenge under the GATS. The contribution will apply international trade law and the general exception in GATS Article XIV to typical requirements stemming from EU data protection law, especially on transfers of personal data to third countries. The article enumerates the specific legal risks for defending EU law on privacy and data protection and explains the practical implications of its hypothetical challenge under the GATS. These insights could be useful for the EU’s negotiators of the future bi- or multilateral free trade agreements, notably the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement.
| Yakovleva, S.|
European Commission's progress reports on digitisation of the European cultural (and film) heritage
In: Cahiers de la documentation - Bladen voor documentatie, no. 3, pp. 74-77., 2015.
Dit artikel maakt een synthese van twee voortgangsrapporten van de Europese Commissie in het domein van het digitale behoud van het Europees cultureel (en filmografisch) erfgoed. Het eerste rapport herziet en evalueert de vooruitgang van de digitalisering van het cultureel erfgoed die verliep tussen 2011 en 2013 volgende op de goedkeuring in 2011 van de Aanbeveling (van de Europese Commissie) betreffende de digitalisering en online toegankelijkheid van cultureel materiaal en digitale bewaring. Het tweede rapport geeft gevolg aan de Aanbeveling van het Europees Parlement over het cinematografisch erfgoed. Het concentreert zich op de vooruitgang, de uitdagingen en risico's die men tegenkomt gedurende het digitaliseringsproces van het cinematografisch erfgoed in 2012-2013. Zelfs indien de twee rapporten anntonen dat een zekere vooruitgang gerealiseerd werd in de betreffende domeinen, geven zij ook toe dat deze vooruitgang zeer beperkt was en dat de digitalisering een uitdaging blijft.
| Yakovleva, S.|
Russia's new anti-piracy law: A critical analysis
In: European Intellectual Property Review, no. 9, pp. 608-613., 2015.
This article analyses Russia's new anti-piracy law aimed at improving online enforcement of copyright and related rights. The article places the new developments in the context of the prior intellctual property rights enforcement regime and Russia's international and constitutional obligations to secure the right to freedom of expression. The author discusses and critically assesses the most important changes introduced by the new law, and draws conclusions about their correlation with freedom of expression, overall effectiveness and the impact on right holders, internet users and the internet industry.
| Quintais, J., Velze, S.C. van, Yakovleva, S.|
Symposium on Alternative Compensation Systems for Digital Copyright
2015, ( Summary Report of <a href="http://www.ivir.nl/onderzoek/acs">ACS Symposium</a> on Saturday 11 July 2015. ).
| Henderson, J., Yakovleva, S., Yefremova, M.|
Hart Publishing, Oxford, 2015, ISBN: 9781849462990.
The book explains Russian contract law in a form understandable to lawyers qualified in other countries, especially common law countries. The introduction gives a concise overview of the Russian legal system in general and contract law in particular as well as a brief insight into the history of contract law in Russia. Then the main concepts of Russian contract law are explained, using the conceptual framework of English contract law to make them accessible to someone not familiar with the codified Russian system.The book not only considers the legislation regulating Russian contractual relations but also includes appropriate case law to show how the legislation is interpreted. The focus is on contract law in Russia as it actually operates, rather than merely the legislative texts, so that it will be directly relevant to legal practitioners and others who wish to acquire knowledge of the practical application of an important element of the Russian legal system, as well as those seeking an insight into the realities of codified law in action. The target readership therefore includes legal practitioners who have to deal with Russian law, academics and students with an interest in Russian law, the law of contract and comparative civil law, as well as scholars of comparative legal systems and Russian area studies.