Navigating the Global Seas of GDPR: A Guide to International Transfers of Personal Data

The General Data Protection Regulation (GDPR) has had a significant impact on the way personal data is handled and protected, not only within the European Union (EU) but also in relation to international transfers of personal data. With the increasing globalization of data processing, the protection of personal data has become a crucial issue for organisations operating across borders. In this article, we will explore the key provisions of GDPR relating to international transfers of personal data and the practical implications of these provisions for organisations.

What is GDPR?

The General Data Protection Regulation (GDPR) is a regulation of the European Union (EU) that came into force on May 25, 2018. The regulation replaces the 1995 EU Data Protection Directive and provides a harmonised legal framework for data protection across the EU. The GDPR applies to all organisations operating in the EU, as well as to organisations outside of the EU that process personal data of individuals located in the EU.

The purpose of GDPR is to protect the privacy and personal data of individuals and to give individuals more control over their personal data. The regulation sets out strict rules for the collection, processing, storage, and transfer of personal data, and provides for significant fines and other penalties for non-compliance.

International transfers of personal data under GDPR

One of the key provisions of GDPR relates to international transfers of personal data. The regulation recognises that international transfers of personal data can pose a risk to the privacy and security of personal data, and as a result, imposes strict rules on the transfer of personal data outside of the EU.

Under GDPR, international transfers of personal data can only take place if the recipient country provides an adequate level of protection for the privacy and security of personal data. The European Commission has the power to determine whether a country outside of the EU provides an adequate level of protection for personal data, and has issued a number of decisions stating that certain countries, such as Canada and New Zealand, provide an adequate level of protection.

However, if a country outside of the EU has not been deemed by the European Commission to provide an adequate level of protection, international transfers of personal data to that country can still take place, but only if the transfer is authorised by other means. These other means include the use of standard contractual clauses approved by the European Commission, binding corporate rules, and codes of conduct.

Standard contractual clauses

Standard contractual clauses are a set of model contracts approved by the European Commission that organisations can use to authorise international transfers of personal data. The standard contractual clauses set out specific obligations for both the data exporter (the organisation located in the EU) and the data importer (the organisation located outside of the EU) in relation to the protection of personal data.

The standard contractual clauses provide a level of protection for personal data that is equivalent to the protection provided by GDPR, and organisations using the standard contractual clauses must comply with the provisions of the clauses. In addition, organisations must also ensure that the data importer is able to provide the same level of protection for personal data as required by GDPR.

Binding corporate rules

Binding corporate rules (BCRs) are internal policies and procedures approved by data protection authorities that allow organisations to transfer personal data within a group of companies located in different countries. BCRs are particularly useful for organisations that have a global presence and need to transfer personal data between different parts of the organisation.

BCRs set out specific obligations for the protection of personal data and must be approved by data protection authorities in each EU member state where the organisation operates. Once approved, BCRs provide a legal framework for the transfer of personal data within the group of companies and can be used in place of standard contractual clauses.

Codes of conduct

Codes of conduct are sets of rules and guidelines that have been developed by specific industries or groups of organisations to ensure the protection of personal data in international transfers. Organisations that adopt a code of conduct must comply with the provisions of the code and must demonstrate their compliance to data protection authorities.

Codes of conduct can provide a useful framework for organisations that are engaged in international transfers of personal data and can help organisations to ensure that they are complying with GDPR. However, codes of conduct are not legally binding and do not provide the same level of protection for personal data as standard contractual clauses or BCRs.

Practical implications for organisations

The provisions of GDPR relating to international transfers of personal data have a number of practical implications for organisations. Organisations must carefully consider the method they use to authorise international transfers of personal data, and must ensure that they are in compliance with the relevant provisions of GDPR.

Organisations must also be aware of the risks associated with international transfers of personal data, and must take appropriate measures to protect the privacy and security of personal data. This may include using encryption to protect personal data in transit, and implementing strict access controls to restrict access to personal data.

In addition, organisations must have in place processes to monitor and audit the transfer of personal data, and must have the ability to respond to requests from individuals for access to their personal data. Organisations must also be able to demonstrate their compliance with GDPR, and must be able to respond to investigations by data protection authorities.

Conclusion

The GDPR has had a significant impact on the way organisations handle and protect personal data, particularly in relation to international transfers of personal data. The provisions of GDPR relating to international transfers of personal data provide a harmonised legal framework for the protection of personal data, and impose strict rules on the transfer of personal data outside of the EU.

Organisations must carefully consider the method they use to authorise international transfers of personal data, and must ensure that they are in compliance with the relevant provisions of GDPR. Organisations must also be aware of the risks associated with international transfers of personal data and must take appropriate measures to protect the privacy and security of personal data.

By understanding the key provisions of GDPR relating to international transfers of personal data, and taking the necessary steps to ensure compliance, organisations can help to protect the privacy and personal data of individuals and demonstrate their commitment to responsible data protection.