Chapter 12 - International Data Transfers Flashcards
What is the objective of the GDPR regarding international data transfers?
-GDPR aims to allow the free flow of personal data between member states based on agreed-upon principles of personal data protection.
-However, it recognizes that transfers of personal data to third countries require special consideration and regulation to ensure the protection of individuals’ data.
What are the conditions for transferring personal data to countries outside the EEA according to Chapter 5 of the GDPR?
-Transfers of personal data to any country outside the EEA may only take place if:
- The third country ensures an adequate level of protection for the personal data as determined by the European Commission.
- In the absence of adequate protection, the controller or processor provides appropriate safeguards, ensuring enforceable data subject rights and effective legal remedies.
- If neither adequate protection nor appropriate safeguards are available, the transfer fits within one of the derogations for specific situations covered by the GDPR.
What are the practical implications of the GDPR’s high standards of privacy protection?
-Countries without strict legislative approaches to privacy protection may struggle to meet adequacy requirements for data transfer, posing a barrier to international commerce.
-Large multinational organizations may adopt EU data protection practices across their operations, regardless of where data processing activities take place
What is the significance of Recital 101 in the GDPR?
-Recognises that cross-border flows of personal data are necessary for international trade but emphasizes that the level of protection ensured in the European Union by the GDPR should not be undermined.
-This approach aims to prevent any weakening of the protection afforded to individuals.
What is the procedure for designating countries with adequate protection?
-The European Commission assesses the adequacy of protection and may decide, by implementing act, that a third country or international organization ensures adequate protection.
-The act must provide for periodic review, specify territorial and sectoral application, and identify supervisory authorities responsible for compliance.
What is the scope of data transfers under the GDPR?
-GDPR does not define “transfer,” but it is distinct from mere transit.
-Transfer involves processing in the third country.
-Technical routing of packet-switch technology and electronic access to personal data by travelers are not subject to GDPR restrictions unless substantive processing occurs in the third country.
What is the meaning of “adequate level of protection” under Article 45(1) of the GDPR?
-A transfer of personal data to a third country or international organization may take place if the European Commission decides that the third country or organization ensures an adequate level of protection.
-This assessment considers factors such as the rule of law, human rights, data protection rules, supervisory authorities, and international commitments.
What is the situation in the United States regarding data transfers?
-The original Safe Harbor mechanism allowed EU personal data to be transferred to U.S.-based companies that agreed to abide by Safe Harbor Privacy Principles.
-However, it faced criticism and was invalidated by the CJEU in 2015. The Privacy Shield Framework was introduced in 2016 but was also invalidated in 2020.
-The Trans-Atlantic Data Privacy Framework is the latest effort to address these issues.
What are the Privacy Shield principles?
- Notice
- Choice
- Accountability for onward transfer
- Security
- Data integrity and purpose limitation
Access - Recourse, enforcement, and liability.
What steps must companies take to comply with the Privacy Shield principles?
-Companies must conduct an internal compliance assessment, register with a third-party arbitration provider, adopt a Privacy Shield notice containing specified details about privacy practices, and publish the notice online.
What are the mechanisms for providing adequate safeguards for international data transfers?
- The GDPR lists several mechanisms, including:
- Legally binding and enforceable instruments between public authorities or bodies
- Binding corporate rules (BCRs)
-Standard data protection clauses adopted by the Commission or supervisory authorities
-Approved codes of conduct and certification mechanisms
-Contractual clauses between controllers, processors, or recipients of personal data.
What is the contractual route for legitimizing international data transfers?
-Standard contractual clauses (SCCs) or model clauses are preapproved contracts establishing obligations for both exporters and importers to safeguard personal data.
-The revised SCCs adopted in June 2021
-Provide a modular approach for various transfer scenarios, including controller-to-controller, controller-to-processor, processor-to-processor, and processor-to-controller transfers.
What is the role of the European Data Protection Board (EDPB) in assessing SCCs?
-EDPB issued recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection.
-These recommendations provide a detailed roadmap for a transfer impact assessment, including steps to know transfers, identify transfer tools, assess effectiveness, adopt supplementary measures, and re-evaluate at appropriate intervals.
What are codes of conduct and certification mechanisms under the GDPR?
-Codes of conduct and certification mechanisms are novel adequacy mechanisms for international data transfers.
-The EDPB issued guidelines on codes of conduct and monitoring bodies, as well as guidelines on the accreditation of certification bodies under Article 43 of the GDPR.
What are the requirements for BCRs under the GDPR?
-BCRs must include elements:
-the structure and contact details of the corporate group
-data transfers
-legally binding nature
-application of data protection principles
-rights of data subjects
-liability acceptance
-information provision
-compliance verification
-reporting mechanisms
-cooperation with supervisory authorities
-data protection training.
What are binding corporate rules (BCRs) and their significance?
-BCRs are a global set of rules based on European privacy standards
-Allowing multinational organizations to make intra-organisational transfers of personal data across borders in compliance with EU data protection law.
-BCRs must be legally binding and confer enforceable rights on data subjects.
What are the derogations for specific situations under the GDPR?
- Explicit consent of the individual
- Contract performance
- Substantial public interest
- Legal claims
- Vital interests
- Public registers
- Not repetitive transfers with compelling legitimate interests.
What is the future of restrictions on international data transfers?
-Overcoming restrictions on international data transfers is a significant compliance challenge for global organizations.
-The EU institutions are unlikely to adopt a softer approach in the foreseeable future.
-Organizations are advised to develop a global data protection compliance program in line with adequacy criteria and commit to it through contractual mechanisms or BCRs.
