Mercosur Commerce Electronic Agreement: Challenges and Opportunities

On April 29, 2021, at the Mercosur headquarters, representatives of Argentina, Brazil, Paraguay, and Uruguay concluded the Mercosur E-Commerce Agreement (henceforth, the «Agreement»).

In this paper, we will examine its impact on the protection of personal data in the States parties and the development of e-commerce in the region. To do so, we will first evaluate the context in which the Agreement arises, both regarding the exponential growth of domestic e-commerce, especially after the outbreak of the Covid-19 pandemic, and other international agreements, documents, and initiatives within the Mercosur framework. We will then analyze its articles in detail and highlight various examples of its future application.

In addition, we will look at the local regulations of the States Parties, weighing up the impact of the Agreement on central aspects of data protection in each country: international standards, including general principles such as prior consent, purpose, quality, security, and accountability, among others; security measures; international data transfers and unsolicited commercial communications. We also compare the Agreement with other international instruments on personal data and the digital economy, including other regional trade agreements such as the Digital Economy Partnership Agreement (DEPA), the Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP), and the Free Trade Agreements between Argentina and Chile, and Uruguay and Chile, with similarities that allow us to conclude that all these texts served as a direct source.

Finally, we offer three main conclusions: 1) Argentina, Paraguay, and Uruguay will have to adjust their local norms on personal data protection to comply with the text of the Agreement; 2) the similarity between the text of the Agreement and other international trade treaties shows the importance for Mercosur to resume international negotiations with the European Union and the CPTPP countries; and 3) the promotion of e-commerce and co-regulation in Mercosur can be positive for the protection of personal data, privacy and human rights within the region. It is in this fashion that we clarify the opportunities and challenges that the Agreement presents for data protection and the development of digital trade in Mercosur.