Article 44 of the GDPR introduces Chapter V (Articles 44 to 50). It precedes the exhaustive list of ways in which personal data may be transferred by a controller or processor to countries outside the EU or to international organisations. It also describes the general rules that apply to international transfers. The GDPR does not define the term “data transfer” and the case law on this subject is concise or outdated. In addition, market practices should assume that there is a “data transfer” when a third-country company collects personal data directly from natural persons in the EU. This interpretation was developed in the context of the European Data Protection Directive (predecessor of the GDPR). U.S. companies that have conducted such direct data collection may enroll in previous Safe Harbor or Privacy Shield frameworks to legitimize their “data transfers” to the United States.3) The recipient is a separate organization or individual. This also includes transfers to another company within the same group of companies. The transfer of personal data is defined as limited if: You are completely secure and compliant as long as you transfer data only within the EU or to an appropriate country. This is the best way to process your users` personal data.
[1] Art. 3.2 The GDPR provides that the GDPR “applies to the processing of personal data of data subjects located in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, whether or not payment by the data subject is required, to those data subjects in the Union; or (b) monitoring their conduct to the extent that their conduct takes place within the Union. Although it is essential to data protection – mentioned 15 times in the GDPR – and can help protect the privacy and security of personal data, pseudonymisation has its limitations, which is why the GDPR also mentions encryption. Therefore, if you want to use a data processing tool whose servers are located in another country, you are legally compliant if you do so on one of the following bases: 2. Do you have a contract with the data subject? And is the limited transfer necessary for you to fulfill this contract? In addition, the CJEU did not define the term “transfer” in Schrems I (according to dpD). Similarly (and unfortunately) the same goes for the Schrems II 2020 judgment (under the GDPR). [6] Please be aware that countries may be admitted and/or leave the EU or EEA at any time. And new “adequacy decisions” can be made that include countries that are not in the EEA or EU within the scope of the GDPR. Be proactive and stay informed about countries eligible for GDPR and data transfers.
The GDPR protects personal data a lot and therefore takes data transfer seriously. The European Union has data protection measures at a high level. It only allows the transfer of data to countries that are up to the challenge of an equally high level of protection. As a result, the GDPR prescribes in detail how you can share data with someone else. We will review the GDPR requirements for the processing of personal data to help you imagine how the GDPR data transfer rules can apply to your business and customers. Article 44 of the GDPR refers to transfers to a third country or an international organisation as well as to “transfers of personal data from the third country or from an international organisation to another third country or to another international organisation”. Just as the GDPR does not define transfers, redirects are not defined. Although the guidelines are not yet final, they are a good indication of how EU data protection authorities interpret and apply restrictions on data transfers. The practical implications of the guidelines are important for companies that process personal data from the EU, and organisations that do not have a presence in the EU but operate in Europe should assess the impact of the guidelines on their data protection compliance strategy.
The GDPR restricts the transfer of personal data outside the European Economic Area (EEA) or the protection of the GDPR, unless the rights of individuals with respect to their personal data are otherwise protected or one of the exceptions of a limited number applies. These limitations may include: Before analysing cross-border transfer mechanisms under the GDPR, it is necessary to clarify the definition of cross-border transfer and find out what it does not include. The GDPR has an entire chapter (Chapter V) dedicated to data transfer. It clearly defines the rules under which you can transfer data to third countries. Furthermore, in Schrems II, the Court relied on the expression `an essentially equivalent level of protection` to interpret the appropriate safeguards required under Article 46(1) of the GDPR and Article 46(2)(c) of the GDPR[14] and recalled that it applied to adequacy decisions. The European Data Protection Board has also suggested that this interpretation applies to transfers in general, i.e. in Article 44 of the GDPR. The board expressly stressed that a “substantially equivalent level of protection” can provide a guarantee that the level of protection under the GDPR will not be “compromised”.
[15] It is not enough to evaluate the data you process and establish appropriate data transfer practices. Plan how you can manage change in your organization. Continue to assess the impact of GDPR on a regular basis, with a frequency based on the magnitude of changes in your organization. Data transfers are one of those slippery slopes where you can easily break the GDPR. Despite your best intentions in processing your users` data, you need to be extremely careful about where you send that data to avoid the massive penalties of the GDPR. So how do you make a restricted transfer in accordance with the GDPR? We explain it in this post. With Brexit underway, there is a lot of confusion as to whether the UK is still subject to the GDPR as it is an EU regulation. In addition to the free transfer of data on the basis of appropriate safeguards, you may transfer data to a third country with the authorisation of the competent supervisory authority. In this case, you will also need appropriate standard contractual clauses for data protection. If the three criteria listed above are met, the data flow is considered an international transfer of data within the meaning of the GDPR and the obligations set out in Chapter V of the GDPR apply. In particular, the parties must ensure that an adequate level of protection is ensured in the recipient country (e.g. B through standard contractual clauses, binding corporate rules, codes of conduct, certification mechanisms, ad hoc contractual clauses or where one of the exceptions set out in Article 49 of the GDPR applies).
On the 19th. In November 2021, the European Data Protection Board (“EDPS”) published its draft Guideline 05/2021 (the “Guidelines”) on the interaction between the application of Article 3 of the EU General Data Protection Regulation (“GDPR”), which defines the territorial scope of the GDPR, and the provisions of the GDPR on international data transfers. The guidelines are intended to help organizations subject to the GDPR determine whether a data processing activity constitutes an international transfer of data within the meaning of the GDPR, as the GDPR does not define the term. At the same time, however, it is also obvious that data transmission is not data collection. This is also demonstrated by the fact that the two operations are listed separately in the definition of the term “processing of personal data” in Article 4(2) of the GDPR. The EU-US Privacy Shield is a framework for the exchange of data for commercial purposes between the EU and the US, which allows the free transfer of data from any EU company to certified US companies. Article 44 of the GDPR contains the general principle of transfers under the Regulation. It also describes the stakeholders concerned by Chapter V. It should be noted at the outset that Article 44 of the GDPR stipulates that the transfers concerned here concern personal data that are “being processed or intended to be processed after transmission.
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