GDPR Series #8: Complying with GDPR’s Cross-border Data Transfer Rules While Transferring Data Outside the EU

GDPR lays down strict rules for transferring data to countries outside the EU because data privacy and security are its core tenets. These rules regulate the transfer of personal data to jurisdictions where data protection standards are lower than those within the EU.

In this article on our GDPR series, we’ll look at cross-border data transfer rules and how you can comply with them.

GDPR Rules for Cross-border Data Transfer

Chapter 5 of GDPR encompassing articles 44 to 50 governs personal data transfer to third countries or international organizations. Let’s take a brief look at each of these articles.

Article 44 – General Principles

This introductory article states that data transfers outside the EU are valid only if they meet all the provisions of Chapter 5 to ensure the highest levels of protection for personal data.

Article 45 – Transfer on the Basis of an Adequacy Decision

The Commission approves data transfers to those third countries that offer adequate legal protection for data privacy. While assessing this adequacy, the Commission considers if one or more of the following are present in the specified third country.

• Respect for human rights and fundamental freedom.
• Relevant legislation and rule of law.
• Presence of adequate data protection and individual freedom laws.
• Availability of effective administration and judicial redress for data subjects.
• Existence of and effective functioning of one or more independent supervisory authorities.

Moreover, the Commission will continuously monitor these aspects and modify its decisions accordingly. It will also notify all decisions and changes.

Article 46 – Transfers Subject to Appropriate Safeguards

If the requirements of Article 45 are not met, GDPR requires you to provide appropriate safeguards and ensure the availability of effective legal remedies. These safeguards include contractual agreements or administrative arrangements between public authorities or bodies.

Article 47 – Binding Corporate Rules

Binding Corporate Rules (BCR) allows you to transfer data to other enterprises that are a part of your group. However, these BCRs are legally binding and you must provide information on the receiving company and its structure. Also, you must furnish the available mechanisms for monitoring compliance, handling complaints, and ensuring corrective actions.

Article 48 – Transfers or Disclosures not Authorized by Union Law

If you have to transfer data due to the judgment of any court or tribunal in a third country, it must be based on an international agreement like a mutual legal assistance treaty.

Article 49 – Derogations for Specific Situations

Article 49 allows personal data transfers to third countries in the following cases:

• The data subject has explicitly provided consent.
• Necessary for contractual or pre-contractual performance
• Required for important public interest reasons, legal claims, and vital interests.

However, you must ensure that these transfers are non-repetitive and the conditions for the requests are limited. Also, it must not impact the data subject’s interests or rights and you must have suitable safeguards to protect them. Lastly, the transfers must be for legitimate interests only.

Article 50 – International Cooperation for the Protection of Personal Data

This article brings out the importance of international cooperation. It requires the EU Commission and supervisory authorities to:

• Help third countries implement data protection laws.
• Provide international mutual assistance for enforcing legislation to protect personal data.
• Discuss with stakeholders about implementing personal data protection laws.
• Promote the exchange and documentation of personal data protection practices.

Now that you know what GDPR states with data protection, let’s look at the best practices to ensure compliance.

Best Practices for Cross-border Data Transfer

Below are some actions you can take to comply with GDPR’s stringent cross-border data transfer regulations:

1. Understand the legality of the transfer, including the existing safeguards and adequacy decisions by the European Commission.
2. If there is no adequate decision, provide appropriate safeguards like Standard Contractual Clauses (SCCs), Binding Corporate Rules (BCRs), or approved codes of conduct.
3. Keep detailed records of all cross-border data transfers, including legal basis, safeguards, and associated documents.
4. Conduct risk assessments for data transfers to understand and mitigate potential risks to data subjects’ rights and freedoms.
5. Provide data subjects with clear information about cross-border data transfers, including the legal basis for the transfer, potential risks, and measures taken to protect their data.
6. Stay updated on changes to adequacy decisions and other regulatory guidance.
7. Transfer only the personal data necessary for specific purposes.
8. Use anonymization or pseudonymization when possible.
9. Conduct regular audits and reviews to ensure continuous compliance.
10. Participate in discussions with the Commission to explain your requirements.

Thus, these are some best practices for meeting GDPR’s cross-border data rules.

Final Words

In all, given GDPR’s focus on data security, it is no surprise that it lays down stringent rules for transferring personal data outside the EU. At the same time, it strives to facilitate legitimate transfers, enshrined in Chapter 5. We hope the existing provisions discussed in this article and the ways to implement them ease your cross-border data transfer activities.