Data Transfers

On 2 December 2024, the European Data Protection Board (“EDPB”) adopted its draft guidelines on Article 48 GDPR (the “Draft Guidelines”). The Draft Guidelines are intended to provide guidance on the GDPR requirements applicable to private companies in the EU that receive requests or binding demands for personal data from public authorities (e.g., law enforcement or national security agencies, as well as other regulators) located outside the EU.

The Draft Guidelines focus in particular on Article 48 GDPR, which states that a binding demand from a non-EU public authority “requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.”

As an initial matter, the EDPB addresses the question of whether Article 48 operates as a blocking statute—i.e., a prohibition on disclosure of personal data subject to the GDPR to non-EU public authorities in the absence of an international agreement (e.g., a mutual legal assistance treaty) that permits that disclosure. The Draft Guidelines state that, even in the absence of such an international agreement, companies can in principle disclose personal data in response to such demands, provided that they (a) have a valid legal basis for doing so under Article 6 GDPR, and (b) can validly transfer the personal data outside the EU in accordance with Chapter V GDPR (e.g., on the basis of an EU adequacy decision, “appropriate safeguards”, or one of the derogations set out in Article 49 GDPR). The Draft Guidelines nonetheless make clear that, absent such an international agreement, any demand from a non-EU public authority will not be recognized as a binding demand by, or enforceable in, EU courts.

The Draft Guidelines also provide guidance on the Article 6 legal bases and Chapter V transfer grounds that might apply where a private entity receives a request or demand for personal data from a non-EU public authority. This guidance is broadly consistent with the EDPB’s analysis in its 2019 joint opinion with the EDPS on the CLOUD Act. Of particular note:Continue Reading EDPB adopts draft guidelines on requirements when responding to requests from non-EU public authorities

On September 12, 2024, the European Commission announced that it will launch a public consultation on additional standard contractual clauses for international transfers of personal data to non-EU controllers and processors that are subject to the EU GDPR extra-territorially (“Additional SCCs”), something that has been promised by the European Commission…

Continue Reading EU Commission Announces New SCCs for International Transfers to Non-EU Controllers and Processors Subject to the GDPR

On August 23, 2024, the Brazilian Data Protection Authority (“ANPD”) published Resolution 19/2024, approving the Regulation on international data transfers and the content of standard contractual clauses (the “Regulation”).  The Regulation implements the international data transfer framework under the Brazilian General Data Protection Law (“LGPD”).

Under the LGPD, international data transfers from Brazil to a third country are permitted if: (i) the ANPD recognizes the third country as providing adequate protection for personal data; (ii) the data exporter and data importer enter into standard contractual clauses (“SCCs”), binding corporate rules, or special contractual clauses; or (iii) one of the specific cases listed in the LGPD applies (e.g., the transfer is necessary to protect the life of the data subject, the data subject consents to the transfer, or the ANPD authorizes the transfer).  The Regulation relates to the data transfer instruments mentioned in (i) and (ii).

Standard Contractual Clauses
The Regulation approves and publishes SCCs for the transfer of personal data outside of Brazil without ANPD’s authorization.  The SCCs cover both controller-to-controller and controller-to-processor international data transfers.  Like the EU SCCs, they are contracts signed between the data exporter (in Brazil) and the data importer (in a third country).  The parties may not modify them.  The ANPD may allow the transfer of personal data outside of Brazil on the basis of “equivalent SCCs” adopted by third countries, provided that they are compatible with the LGPD.  The ANPD has not (yet) indicated that it would recognize the EU SCCs as equivalent.

Brazilian controllers that use contractual clauses to transfer personal data internationally must replace those contracts with the newly published SCCs by August 22, 2025.Continue Reading Brazil Issues New Regulation on International Data Transfers

After more than seven months since China’s Personal Information Protection Law (《个人信息保护法》, “PIPL”) went into effect, Chinese regulators have issued several new (draft) rules over the past few days to implement the cross-border data transfer requirements of the PIPL.  In particular, Article 38 of the PIPL sets out three legal mechanisms for lawful transfers of personal information outside of China, namely: (i) successful completion of a government-led security assessment, (ii) obtaining certification under a government-authorized certification scheme, or (iii) implementing a standard contract with the party(-ies) outside of China receiving the data.  The most recent developments in relation to these mechanisms concern the standard contract and certification.

Chinese Government Issues Draft SCCs

On June 30, 2022, the Cyberspace Administration of China (“CAC”) released draft Provisions on the Standard Contract for the Cross-border Transfers of Personal Information (《个人信息出境标准合同规定（征求意见稿）》, “Draft Provisions”) for public consultation.  The full text of the Draft Provisions can be found here (currently available only in Mandarin Chinese).  The public consultation will end on July 29, 2022.Continue Reading Cross-border Data Transfer Developments in China