ILA Committee on the Protection of Privacy in Private International and Procedural Law

The Committee was established in 2013 further to the proposal of Prof. Dr. Dres h.c. Burkhard Hess to create a forum on the protection of privacy and personal data in the context of private international and procedural law. Prof. Dr. Dres h.c. Burkhard Hess chairs the Committee, and Prof. Dr. Jan von Hein and Dr. Cristina M. Mariottini are the co-rapporteurs.

Ensuring the effective right to privacy and personal data has become a key issue both at the regional and international level. By reason of the rapid computerisation and automatisation in the handling of personal information, traditional expectations for the protection of one’s privacy or for control of an individual over his or her personal data have recently undergone major changes. As a result of such innovations and of the virtually limitless range of contexts in which they operate, the dynamics and the dimension of the potential intrusions into one’s personal life have been significantly transformed, bringing forth new challenges for legislators, courts and practitioners. A new understanding and shaping of the right to privacy and to data protection are currently being forged, giving rise to questions of jurisdiction, applicable law, recognition and enforcement of judgments, but also of legal standing, protection of vulnerable parties, and remedies, among the others. Against this backdrop, exploring private international and procedural law issues is of utmost significance, and the adaptation of general rules on torts and contracts may not necessarily provide an adequate and satisfactory solution.

Scope and objectives of the Committee

The Committee on the Protection of Privacy in Private International and Procedural Law—which is comprised of experts from Australia, Austria, Belgium, Brazil, France, Germany, Italy, Japan, Korea, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America—is designed to analyse these issues in cross-border settings and to highlight the emerging questions as well as the current and potential impediments to an effective protection of privacy and personal data rights with a view to formulating proposals and solutions. The scope of the Committee, which tackles questions of private enforcement, encompasses the protection of such rights in the framework of both traditional settings and mass media, and it extends to their treatment over the Internet, including but not limited to the context of social media. Mindful of the high degree of interaction between the protection of privacy and personal data, in its guidelines the Committee adopts a notion of privacy which refers to an individual’s rights relating to his or her personality, including, in particular, the right to image, the seclusion of home and property, the processing of personal data, reputation, and personal communications.  Cognizant also of the impact that constitutional and fundamental values bear not only under substantive law, but also under private international and procedural law, the Committee incorporates such values into its analysis.

Guidelines and commentary

The Committee not only aspires to identify concrete issues needing to be addressed, it also aims at formulating recommendations, guidelines and principles specifically tailored to the treatment of these matters in a cross border context, with the overarching aim of reinforcing predictability and harmonisation at a global level. While such guidelines and principles will be drafted subsequent to a valuable comparative analysis of the solutions currently in force, both as regards substantive and private international and procedural law, they will primarily provide a more long-term outlook and offer proposals on the emerging questions that to date often lack proper regulation. To provide additional context, each proposed guideline will be complemented by a commentary. The Committee’s final conclusions and recommendations are scheduled to be submitted for adoption by the ILA at the 80th ILA Biennial Conference in 2022.

To date, the Committee has met five times, and it has held an Open Session meeting at the 77th ILA Biennial Conference in Johannesburg in August 2016. The Committee is scheduled to hold its sixth Committee meeting in Spring 2018 to further discuss and elaborate its draft guidelines and commentary in preparation for submitting and presenting its First Interim Report at the 78th ILA Biennial Conference, from 19 until 24 August 2018 in Sydney (Australia).

In September 2014, the Max Planck Institute Luxembourg hosted a conference in the framework of the Committee*. In October 2017, a second conference on ‘Jurisdiction, Conflicts of Laws and Data Protection in Cyberspace’ was organised in collaboration with the Brussels Privacy Hub. A report on the event (including the video-recording of the event) is available here.

For additional information on the Committee and its activity, please consult the ILA website.

* The proceedings were published in an edited volume entitled ‘Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments’, B. Hess and C.M. Mariottini (eds) (2015).