Organization of cross-border data transfer according to GDPR Konstantin F July 22, 2020

Organization of cross-border data transfer according to GDPR

In the General Data Protection Regulation (GDPR), the European Union (hereinafter referred to as the EU) established a restriction on the export of personal data outside the EU.

Cross-border data transfer to third countries is possible only if such transfer complies with Chapter V of the Regulation. Chapter V contains a limited number of mechanisms aimed at ensuring that the transfer to third countries does not weaken the level of personal data protection guaranteed by the Regulation.

Before analyzing the mechanisms of cross-border transfer under GDPR, it is necessary to clarify the definition of cross-border transfer and to find out what it does not include.

Thesis 1. Data collection is not a data transfer.

In practice, there is a common misconception that receiving data from a data subject in the EU, by a non-European controller is a cross-border transfer. This leads to the erroneous conclusion that it is necessary to comply with the requirements of Chapter V of the GDPR “Transfers of personal data to third countries or international organizations”. However, receiving data from the subject is not a cross-border transfer of data and represents nothing but a data collection. 

The British supervisory authority ICO defines data transfer as “intentional sending of personal data, or making it accessible”.

At the same time, it is also obvious that the data transfer is not data collection. This is also proved by the fact that both these operations are listed separately from each other in the definition of “personal data processing” in art. 4(2) of the GDPR.

Data transfer is an intentional sending of personal data to another party or making the data accessible by it, where neither sender nor recipient is a data subject.

British supervisory authority ICO
Thesis 2. Cross-border collection should not be treated as data transfer.

According to Art. 44 of the GDPR and related Recital 101 the rules of Chapter V of the GDPR apply to the transfer of personal data. Consequently, in the “cross-border collection” of data from data subjects from the EU by a company outside the Union, the company is not bound by the requirements of Chapter V of the GDPR “Transfer of personal data to third countries or international organizations”.

Woman using smartphone
Thesis 3. Only transfers outside the EU must comply with the rules of Chapter V

If the data are transferred to the company and not collected by this company, (for example, it receives personal information from the EU through its partner or customer) Chapter V becomes binding due to Art. 44 of the GDPR, which refers to the transfer to a third country or international organization. 

Attention should be paid to the direction of the transfer: from the EU to a third country or international organization, that is, when the data are exported across the external border of the European Union. Once activated, Chapter V will continue to apply to subsequent transfers without taking into account the direction: “the level of protection of natural persons ensured in the Union by this Regulation should not be undermined, including in cases of onward transfers of personal data from the third country or international organisation to controllers, processors in the same or another third country or international organisation ” (Recital 101 GDPR).

If, on the contrary, data are transferred to the EU, the requirements of this chapter of the Regulation do not apply, although the requirements of other chapters of the GDPR will continue to apply to the importer.

Analysis of Chapter V functioning on specific examples

The data are transmitted from P2 to P3, i.e. from the territory of the EU outside its borders. Therefore, for the P2 processor, the rules of data transfer outside the EU from Chapter V of the GDPR begin to apply. 

In particular, Art. 46 of the GDPR, according to which the P2 processor must find a mechanism suitable for such transfer. Most likely, this will be the Standard Contractual Clauses (hereinafter – SCC), although there are other mechanisms for cross-border transfer, which will be discussed in other parts of this article. (In the next article I will also write why the current SCC editions are not designed for such situations, but they are still used).

From now on, all further data transfers, wherever they occur, are subject to the requirements set by Chapter V of the GDPR. Accordingly, even after the transfer of data from the EU to the 3rd country the information will be transferred within that 3rd country, one of the cross-border data transfer mechanisms from the art. 46 of the GDPR must be implemented.

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