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International transfers of personal data

Transfers of personal data to recipients outside the UK , ie a 'third country' is prohibited under the law on data protection unless certain safeguards are put in place. This affects all organisations that engage in international transfers, for example, cloud-based services. Such organisations need to implement lawful data transfer mechanisms in order to be compliant.

International transfers to a recipient in a third country may take place, without a need to obtain any further authorisation, if the UK has decided that such third country ensures an adequate level of data protection. The current list of countries considered 'adequate' can be found on the Information Commissioner's Office (ICO)'s website.

You may transfer personal data where the organisation receiving the personal data has provided adequate safeguards. Adequate safeguards may be provided for by:

Binding corporate rules

International data transfers within a corporate group may take place on the basis of Binding Corporate Rules (BCRs). BCRs require approval from Data Protection Authorities (such as the ICO), but once such approval is obtained, individual transfers made under the BCRs do not require further approval.

BCRs are like a code of conduct, allowing multinational companies to transfer personal data internationally within the same corporate group to countries that do not provide an adequate level of protection.

Model clauses

International data transfers may take place on the basis of standard data protection clauses approved by the UK. From 1 January 2021, the UK will be able to produce its own SCCs for transfers made from the UK. In the meantime, UK controllers can continue to use the existing EU model clauses.

The ICO has approved the use of the model clauses as a means of ensuring adequacy, however, this approval only extends to use of the model clauses as they stand, with additional contractual language added to them that doesn't contradict them in any way.

There are two sets of model clauses produced by the European Commission. One governs controller-to-controller transfers and the other controller-to-processor transfers. You can find both sets of model clauses on the European Commission's
website.

Certifications

International data transfers may take place on the basis of certifications. Certifications provide organisations with a formally recognised confirmation of compliance with UK data protection law, typically with an associated visual symbol, confirming that the organisation satisfies the requirements of the relevant seal or certification.

For more information about this complex area, Ask a lawyer.

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