In the War of Analytics, the echoes of the first salvoes fired at Google Analytics by the Austrian Data Protection Authority, which its French counterpart adds another volume of fire, have not died out. On 10 February, in fact, CNIL declared that it shared the reading of the GDPR according to which the use of Google’s data aggregation system allows illegal data transfer to the USA. 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 due to the legislation on the protection of personal data it could be complicated to continue operating in Europe. There are still no signs from Google and the other Big Techs, but it is probably only a matter of time and a “coalition of the willing” will be born to defend the industrial interests of a strategic sector for the US also at the level of international politics.
The Atlantic, however, is not the only front that the EU has to preside over because even in the Pacific one the drums are starting to roll: Yahoo! Japan (which is not part of the American Big Tech) has announced that from the next April 6, 2022, its services will no longer be usable by citizens located in the European economic area and in the United Kingdom.
The Faq published to clarify the news explain the choice by referring generically to the difficulty in continuing the provision of the service in the European geographical area. Despite the cryptic nature of the declaration, it is quite plausible that the sudden hyperactivity of the community guarantors in the extraterriorial application of the Gdpr and, certainly, the cost of compliance (not only) with the legislation on the protection of personal data have raised concerns about excessive “invasions of field ”to the East as well as to the West (where they are, however, a certainty).
Not too long ago Japan signed the free trade treaty with the EU in which the Commission recognized the adequacy of the Japanese legal system with respect to the rules on the processing of personal data, thus allowing for an easier circulation of information and the increase of commercial relations. If, however, due to the costs generated by submitting to EU legislation, Japanese companies prefer to turn to other markets in the (very neglected and undervalued in Europe) Indo-Pacific area, the free trade agreement will be reduced to a simple piece of paper. We can continue to tell ourselves that the world cannot do without Europe (or rather, the EU) but, trivially, this is not the case.
At the same time, European companies that had bet on Japan based precisely on the trade treaty could suddenly find their borders barred. Not so much at the entrance to Japan, as at the exit from the EU in the event that Brussels decides to review its adequacy decision and therefore revoke the status of what we could improperly call a “favored nation” negotiated with Tokyo.
Even if this happens, one might think, the isolation of a single country is only a speck that will not cause much more trouble. It may be true, but if a grain begins to roll it can turn into an uncontrollable landslide and cause even more damage to our economic system, damage that we certainly do not need.
It is too early to say whether the choice of Yahoo! Japan will be followed by other Japanese companies as well. The fact is that the signal is clear: what we could call the EU’s “legal imperialism” according to which those who want to deal with the Union must fully accept its rules is showing the first signs of abating. This is more true if we persist in practicing a culture of rights of a religious nature, transforming them into fetishes to be venerated regardless of any evaluation of their economic and political sustainability.
Before the worst happens, therefore, it would be important that the Member States and the Community institutions begin to reflect on the meaning of a strategy based on lawfare, the overtly political use of law in international relations. The issue does not only concern the Gdpr but, more generally, the approach according to which it is intended to condition other jurisdictions to fully comply with European standards as a precondition for exchanges. Imperialism, in all its forms, works (as long as it does) only on one condition: having the strength to enforce it. Apparently, however, the EU still needs (a lot) of training before it can “flex the biceps” to such an extent that someone really impresses.