Cross-Border Transfers
The reality of a global business world means businesses frequently need/want to transfer personal data outside of the UK, often to outsource business functions such as customer service support or data hosting. However, before transferring personal data outside of the UK it’s vital to assesses whether that transfer will be a ‘restricted transfer’ under the UK GDPR.
Transfer v Transit
It’s important to note that a transfer of personal data is not the same as personal data being in transit. If personal data's routed through a non-UK country but the transfer is from one UK business to another UK business, then there is no restricted transfer. It’s also important to note that a transfer also includes where personal data stored in the UK is made available for processing in a non-UK country, for example if a database containing personal data hosted in the UK is made available and can be accessed by a development team in India.
What is a restricted transfer?
There is a restricted transfer where the UK GDPR applies to the personal data being transferred; the exporting business is sending data or making it accessible to a data importer located outside the UK; and the importing business is legally distinct from the exporter as a separate public authority, sole trader, partnership, company or organisation (including another company in the same corporate group).
Note, a UK employer sending personal data to an employee based outside the UK will not be a restricted transfer, because technically the personal data is not being sent outside the legal entity.
When can a business make a restricted transfer?
Under UK GDPR, a restricted transfer from the UK to another country or organisation can only take place if it is based on adequacy regulations with the third country or international organisation having been deemed to provide an adequate level of protection for individuals' data protection rights; the controller or processor wanting to transfer the personal data has provided appropriate safeguards in accordance with UK GDPR, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available; or a specific derogation applies to the restricted transfer – for example the data subject explicitly consented to the proposed restricted transfer of their personal data.
The UK has adopted numerous adequacy regulations to the effect that all EEA and EFTA countries and states are recognised as adequate, plus other countries including Andorra, New Zealand and Uruguay.
Before making a restricted transfer, it’s important to conduct a transfer risk assessment to assess the risk of whether the personal data transferred will not be subject to a sufficiently similar level of protection in the importer’s country compared to the level of protection under UK GDPR, and identify ways to mitigate the risk.
How can we help?
We can advise on proposed and existing cross-border personal data transfers, including relevant ‘appropriate safeguards’ , IDTAs and transfer risk assessments.
Want to speak with one of our experienced data protection lawyers? Get in touch here.
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