The Application of ADR in Data and Privacy Protection Disputes

By Charlotte Tran

In the digital era of the 21st century, data has become an incredibly important asset which simultaneously captures the dynamical information of individuals and their economic and social ties. According to the experts, we generate 2.5 quintillion data bytes on a daily basis in 2020.[1] On an additional note, Google, Facebook, Microsoft, and Amazon store at least 1,200 petabytes of information.[2] Social media platforms collectively store data which links to our identity, social relations, professional qualification and even our daily activities. A high degree of exposure of our data requires a necessity for effective means of an adequate level of data and privacy protection through legislation, enforcement, and monitoring. Nevertheless, data protection enforcement faces multiple challenges, especially with the practices of processing and collecting data by big corporates. The core differences in data protection legislation among countries lead to a rising number of disputes over the extent to which personal information should be protected and could lead to a block in data flows among states.[3] There exist substantive differences between the enforcement actions and priorities in different jurisdictions. Furthermore, data flows are transnational in nature and thus it adds another layer of complexity to the disputes. Accordingly, there is a noticeable shift from conventional court-based dispute resolution to ADR for its effectiveness and compatibility with the changes of the modern digital society nowadays.[4] Firstly, it is imperative to understand and acknowledge different forms of data disputes.

Data Disputes

Data is essential to all aspects of an organization and is also considered as the backbone of its business and activities.[5] Data can be divided into two main categories, structured and unstructured data. Structured data refers to a data residing in “fixed fields” within a file or record and containing defined data such as dates, numbers and text.[6] Examples of structured data commonly include dates, addresses, credit card numbers, account payable data and payroll, or geolocation.[7] On the other hands, unstructured data refers to a large set of data which is not stored in a structured database.[8] They are normally associated with emails, user account information, videos, photos and webpages.[9] In practice, the majority of disputes involve unstructured data as it makes up between 40% and 80% of data storage of organizations.[10] In general terms, data disputes normally also involve other types of disputes, such as contractual disputes, pharmaceutical/bio-tech disputes or any other business disputes. The most common data disputes take place between business-to-business for different infringements, including confidentiality, digital copyright, data exchange and processing agreements, trade secrets or unauthorized transfer of data.[11]

ADR in the context of data disputes

ADR mechanism have been proven to be a useful and efficient tool to resolve data disputes. According to WIPO, ADR can bring immediate actions to prevent the further escalation of the disputes, freezing information for instance.[12] Furthermore, on the contrary with litigation, ADR concentrates on the cooperation between the disputed parties to solve the issues.[13] In order to do so, ADR plays a substantial role in determining the contractual roles of responsibilities of the parties.[14] Furthermore, ADR provides the flexibility to come up with different alternatives to solve the disputes and more importantly, to recover the occurred damage.[15] On an additional note, expert determination is also an appealing feature of ADR.[16] Depending on the nature and scale of the dispute, it may be necessary to obtain experts’ perspective and advice on the conflicts.[17]

Apart from ADR, ODR (Online Dispute Resolution) is becoming more visible in this area. With the accelerated pace of technology, ODR has gradually been integrated into our daily lives, even without our awareness.[18] Specifically, the use of ODR is applicable every single time we file a complaint on e-commerce or e-payment platforms.[19] According to experts, ODR is ideal to handle cross-border disputes as it does not tie with any particular jurisdiction.[20] However, ODR might not be suitable for all kinds of disputes but mostly to (low or high) – value e-commerce disputes at the moment.[21]

Nevertheless, it is undeniable that the use of ADR and ODR mechanisms keeps expanding and progressing in general, and data disputes in particular. With the fast pace of technological developments, ADR and ODR has become prominent to unleash different effective solutions for data disputes. In light of COVID-19, the role of ADR is even more visible and highlighted for adequate and immediate solutions for a huge amount of data disputes.

Advantages of ADR in Data Disputes

In its essence, ADR usually offers a more cost-effective and time-efficient solutions. In comparison with litigation, ADR simplifies the procedures and speeds up the process to reach an adequate solution. Furthermore, it plays a prominent role in offering an amicable aftermath. In practice, data disputes always have a strong emphasis on the relationships between the disputed parties. In many cases, post-conflict relationships are crucial to the position of the disputed data. This is evidential in the case of disputes between business as data controller and consumers as data subjects. The faith between these two parties are apparently crucial for the business. Therefore, an amicable post-conflict setting will be ideal for the business to recover their reputation and business in general. Data disputes are also contemporary in nature and accordingly, they are in need of the great flexibility of ADR, tailored to the fast changes in the field.

[1] Jacquelyn Bulao, ‘How Much Data Is Created Every Day in 2021?’ (TechJury 2021) https://techjury.net/blog/how-much-data-is-created-every-day/#gref accessed 2 July 2021

[2] Branka Vuleta, ‘How Much Data Is Created Every Day?’ (SeedScientific) https://seedscientific.com/how-much-data-is-created-every-day/ accessed 2 July 2021

[3] Sandy Nichol, Computer and Security: Abstract of Recent Articles and Literature (1999)

[4] Mauritania, ‘Technology and the future of dispute resolution’ (Lexology) https://www.lexology.com/library/detail.aspx?g=49871d9c-3c49-4518-be2b-9c31e297e55c accessed 7 July 2021.

[5] Phil Beckett, ‘Understanding the Differences Between Structured and Unstructured Data in Disputes’ (Linkedin) https://www.linkedin.com/pulse/understanding-differences-between-structured-data-disputes-beckett/ accessed 7 July 2021.

[6] Ibid.

[7] Devin Pickell, ‘Structured vs Unstructured Data – What's the Difference?’ (G2) https://www.g2.com/articles/structured-vs-unstructured-data accessed 7 July 2021.

[8] Ibid.

[9] Ibid.

[10] Beckett (n 5).

[11] 'WIPO ADR for B2B Data Disputes’ (WIPO) https://www.wipo.int/amc/en/center/specific-sectors/b2b_data/index.html accessed 7 July 2021.

[12] ‘ADR and Data Disputes Webinar’ (WIPO) https://www.wipo.int/export/sites/www/amc/en/docs/adr_datadisputes.pdf accessed 7 July 2021

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Mauritania (n 4).

[19] Ibid.

[20] Ibid.

[21] Ibid.