Data Transfers

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At the end of 2022, the European Commission published its draft adequacy decision on the EU-US transfers of personal data. The draft contains an assessment of the US legal framework around state surveillance. Once in place, EU data transfers to the US under the new Data Privacy Framework (“EU-US DPF”) will be free. However, there are still some steps to take.…

Continue Reading A sigh of relief? EU-US data transfers

On 17 November 2022, the UK Information Commissioner’s Office issued updated guidance on international personal data transfers.  The guidance is to be used for transfers of personal data from the UK to third countries. The ICO added a template transfer risk assessment (TRA) to the guidance, which is required when organisations rely on a  transfer tool under Article 46 of the UK GDPR, e.g. the ICO’s International Data Transfer Agreement (the UK version of the EU SCCs); the Addendum to the EU SCCs, or the Binding Corporate Rules. The requirement to carry out transfer impact assessments stems from Article 46(1) of the UK GDPR, which states that the transfer mechanisms can be used “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” confirmed by the CJEU’s Schrems II judgement.

The ICO’s TRA offers an alternative approach to the  EDPB’s transfer impact assessments (TIA),  to assist data exporters with carrying out their analysis to check that that protections under the transfer tool are not undermined by the laws and practices of the recipient third country.…

Continue Reading ICO provides an alternative to the EDPB transfer impact assessment

On 24 November 2022, the Data Protection (Adequacy) (Republic of Korea) Regulations were laid before the UK parliament for approval. The Regulations are due to come into force on 19 December 2022.  From then onwards, transfers of personal data to South Korea by organisations in the UK may be made without the need to put UK International Data Transfer Agreements (UK versions of the Standard Contractual Clauses) or other transfer tools in place with recipients of personal data in South Korea.…

Continue Reading UK Government grants South Korea a data adequacy status

On October 3, 2022, the UK-U.S. agreement on Access to Electronic Data for the Purpose of Countering Serious Crime (the UK-U.S. Agreement) came into force. The UK and the U.S. governments signed the UK-U.S. Agreement on October 3, 2019 under the U.S. Clarifying Lawful Overseas Use of Data Act 2018 (“CLOUD Act”). The U.S. government is negotiating similar agreements with the governments of Canada, Australia and New Zealand, but notably, not with the European Union.…

Continue Reading Does the UK-U.S. agreement under the U.S. CLOUD Act affect UK’s adequacy under the GDPR?

As you might know, the new EU SCCs were published last year. The UK has now issued new templates for data transfers that can be used from 21 March 2022. With the UK templates confirmed and available, many multinational organisations with presence in the EU and the UK are gearing up to transition their contracts to the new templates. There are some deadlines to be aware of, which you will find in the ‘key dates to note’ section below.

The main agreements that organisations will need to focus on as part of their transition programme are:

  • template agreements with customers and vendors on processing personal data;
  • existing agreements with customers and vendors; and
  • existing agreements within the group companies.

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Continue Reading Time to change to the new EU and UK Standard Contractual Clauses (SCCs)

The Winter 2022 Edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released:

English version

German version…

Continue Reading Get your Update on IT & Data Protection Law in our Newsletter (Winter 2022 Edition)

The arrival of the new EU Standard Contractual Clauses (“EU SCCs”) for international transfers in June 2021 was widely awaited to better understand the new requirements to assess the third-country laws for government access to data prior to using the SCCs following the Court of Justice of the European Union’s (“CJEU”) decision on Schrems II. As a value add, the EU SCCs were updated to reflect the GDPR requirements and also enabled organisations to cover a wider range of data flows than their previous versions due to the addition of ‘processor-to-processor’ and ‘processor-to-controller’ scenarios. Binding Corporate Rules (“BCRs”), another transfer tool available under the EU General Data Protection Regulation (“GDPR”), have not yet been updated to reflect the same flexibility in reflecting the diversity of data flows and presently appear to be limited in use in comparison. It is expected that the European Data Protection Board (“EDPB”) will publish updated BCR requirements in 2022.
Continue Reading So you have got BCRs? You may still need to use the new EU SCCs

On December 1, 2021, in a much-noted decision, the Administrative Court of Wiesbaden (AC Wiesbaden) handed down a preliminary injunction dealing with international data transfers (case 6 L 738/21.WI, available in German here). In the specific case, there was no data transfer mechanism in place and thus the court ordered the defendant to stop using a cookie consent management platform. Contrary to some reports, the court did not rule that U.S.-based consent management solutions or cookies cannot be used anymore. The injunction can still be appealed and could also be lifted in the main proceedings.
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Continue Reading German court prohibits U.S. data transfers in “Cookiebot” decision: Why this decision is special and should alert, but not upset your organization