Privacy & Information Security Law Blog

On November 17, 2022, the UK data protection regulator, the Information Commissioner’s Office (“ICO”), published updated guidance on international transfers that includes a new section on transfer risk assessments (“TRAs”) and a TRA tool.

In its statement regarding the updated guidance, the ICO describes the TRA guidance as “an alternative approach to the one put forward by the European Data Protection Board” and says its aim is “to find an alternative, achievable approach delivering the right protection for the people the data is about, whilst ensuring that the assessment is reasonable and proportionate.”

On February 22, 2022, the European Data Protection Board (the “EDPB”) adopted its final Guidelines 04/2021 on Codes of Conduct as tools for transfers (the “Guidelines”), following a public consultation that took place in 2021.

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

On January 5, 2022, the European Data Protection Supervisor (“EDPS”) issued a decision against the European Parliament (“EP”). The case resulted from a complaint submitted by certain Members of the European Parliament (“MEPs”) who alleged that the Parliament’s use of cookies violated data protection law, including requirements regarding the transfer of personal data outside of the EU. The EDPS is responsible for overseeing compliance of data protection rules by the EU institutions.

On November 19, 2021, the European Data Protection Board (“EDPB”) published its draft Guidelines 05/2021 (the “Guidelines”) on the interplay between the application of Article 3 of the EU General Data Protection Regulation (“GDPR”), which sets forth the GDPR’s territorial scope, and the GDPR’s provisions on international data transfers. The Guidelines aim to assist organizations subject to the GDPR in identifying whether a data processing activity constitutes an international data transfer under the GDPR, as the GDPR does not define the term.

On September 27, 2021, the transition period allowing companies to continue using the old EU Standard Contractual Clauses (“SCCs”) for new transfers from the EU to a third country ended. Companies entering into new transfer agreements incorporating the SCCs must now use those published by the European Commission on June 4, 2021 (the “new SCCs”). Transfers from the UK that rely on SCCs must continue to use the old SCCs.

On September 10, 2021, the UK Government Department for Digital, Culture, Media & Sport (“DCMS”) launched a consultation on its proposed reforms to the UK data protection regime. The consultation reflects DCMS’s effort to deliver on Mission 2 of the National Data Strategy, which is “to secure a pro-growth and trusted data regime in the UK.” Organizations are encouraged to provide input on a range of data protection proposals, some of which are outlined below. The consultation will close on November 19, 2021, and the Centre for Information Policy Leadership (“CIPL”) will consult with members to prepare a formal response to the consultation.

On August 19, 2021, the Belgian Council of State confirmed a decision of the regional Flemish Authorities to contract with an EU branch of a U.S. company using Amazon Web Services (“AWS”).

On August 27, 2021, the Federal Data Protection and Information Commissioner (“Swiss DPA”) announced that the new EU Standard Contractual Clauses (the “SCCs”) may be relied on to legitimize transfers of personal data from Switzerland to countries without an adequate level of data protection, provided that the necessary amendments and adaptations are made for use under Swiss data protection law.

In an article originally published on Practical Law, and reproduced with the permission of the publishers, Hunton Andrews Kurth London partner Bridget Treacy discusses the European Commission’s long-awaited, and now finalized, standard contractual clauses (“SCCs”) for international transfers of personal data made under the EU General Data Protection Regulation (“GDPR”).

On June 28, 2021, the European Commission (the “Commission”) adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (“GDPR”) and another under the Law Enforcement Directive. Their adoption means organizations in the EU can continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection. The adoption comes just before the conditional interim regime under the EU-UK Trade and Cooperation Agreement, under which data could flow freely from the EU to the UK, was set to expire on June 30, 2021.

On June 21, 2021, following a public consultation, the European Data Protection Board (“EDPB”) published the final version of its recommendations on supplementary measures in the context of international transfer safeguards, such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”).

On June 4, 2021, the European Commission published the final version of the implementing decision on standard contractual clauses for transfers of personal data to third countries under the EU General Data Protection Regulation (“GDPR”), as well as the final version of the new standard contractual clauses (the “SCCs”). The European Commission had previously published draft versions of the implementing decision and the SCCs in November 2020.

On May 14, 2021, the Irish High Court dismissed Facebook Ireland’s (“Facebook”) challenge to the Irish Data Protection Commissioner’s (“DPC”) investigation into Facebook’s international transfers of personal data.

On April 27, 2021, the Portuguese Data Protection Authority (Comissão Nacional de Proteção de Dados, the “CNPD”) ordered the National Institute of Statistics (the “INE”) to suspend, within 12 hours, any international transfers of personal data to the U.S. or other third countries that have not been recognized as providing an adequate level of data protection.

On March 15, 2021, the state Data Protection Authority of Bavaria (“Bavarian DPA”) declared the use of U.S. e-mail marketing service Mailchimp by a fashion magazine (acting as controller) in Bavaria impermissible due to non-compliance with Schrems II mitigation steps in relation to the transfer of e-mail addresses to Mailchimp in the U.S.

On January 15, 2021, the European Data Protection Board (“EDPB”) and European Data Protection Supervisor (“EDPS”) adopted joint opinions on the draft Standard Contractual Clauses (“SCCs”) released by the European Commission in November 2020, for both international transfers (“International SCCs”) and controller-processor relationships within the EEA (“EEA Controller-Processor SCCs”). 

On December 24, 2020, the European Union and the United Kingdom reached an agreement in principle on the historic EU-UK Trade and Cooperation Agreement (the “Trade Agreement”). For data protection purposes, there is a further transition period of up to six months to enable the European Commission to complete its adequacy assessment of the UK’s data protection laws. For the time being, personal data can continue to be exported from the EU to the UK without implementing additional safeguards.

On December 10, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s invitation for comments on its draft implementing decision on standard contractual clauses (“SCCs”) to be used for the transfer of personal data from a controller or processor subject to the EU General Data Protection Regulation (“GDPR”) (i.e., a data exporter) to a controller or (sub-)processor not subject to the GDPR (i.e., a data importer).

On December 10, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Commission’s invitation for comments on its draft implementing decision on standard contractual clauses (“SCCs”) between controllers and processors for purposes of Article 28 of the EU General Data Protection Regulation (the “GDPR”). Article 28 of the GDPR sets out specific provisions that must be executed between data controllers and processors when personal data is shared.

On November 12, 2020, somewhat in the shadow of the new standard contractual clauses for data transfers to recipients outside the European Economic Area (“EEA”), the European Commission also adopted draft standard contractual clauses to be used between controllers and processors in the EEA (“EEA Controller-Processor SCCs”).

On November 12, 2020, the European Commission published a draft implementing decision on standard contractual clauses for the transfer of personal data to third countries pursuant to the EU General Data Protection Regulation (“GDPR”), along with its draft set of new standard contractual clauses (the “SCCs”).

On November 11, 2020, the European Data Protection Board (the “EDPB”) published its long-awaited recommendations following the Schrems II judgement regarding supplementary measures in the context of international transfer safeguards such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”). In addition, the EDPB published recommendations on the European Essential Guarantees for surveillance measures (the “EEG Recommendations”), which complement the Recommendations. The Recommendations are subject to a public consultation, which closes on December 21, 2020.

On September 8, 2020, the Swiss Data Protection Authority (the Federal Data Protection and Information Commissioner, “FDPIC”), announced in a position statement that it no longer considers the Swiss-U.S. Privacy Shield adequate for the purposes of transfers of personal data from Switzerland to the U.S. This decision follows the July 2020 ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case, which invalidated the EU-U.S. Privacy Shield for EU-U.S. transfers of personal data. This ruling was considered as part of the annual review of the Swiss-U.S. Privacy Shield Framework by the FDPIC since, as Switzerland is not a member of the EU, it is not bound by the CJEU ruling.

On September 4, 2020, the European Data Protection Board (the “EDPB”) announced that it established two taskforces following the judgment of the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

On September 3, 2020, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) of the European Parliament held a meeting to discuss the future of EU-U.S. data flows following the Schrems II judgment of the Court of Justice of the European Union (the “CJEU”). In addition to Members of the European Parliament (“MEPs”), the meeting’s participants included Justice Commissioner Didier Reynders, European Data Protection Board (“EDPB”) Chair Andrea Jelinek and Maximilian Schrems. Importantly, Commissioner Reynders stated during the meeting that the new Standard Contractual Clauses (“SCCs”) might be adopted by the end of 2020, at the earliest.

On August 24, 2020, the Data Protection Authority (“DPA”) of the German federal state of Baden-Württemberg issued guidance on international data transfers following the judgment of the Court of Justice of the European Union (“CJEU”) in the Schrems II case (decision C-311/18 of July 16, 2020). As we previously reported, the judgment of the CJEU invalidated the EU-U.S. Privacy Shield framework and confirmed the ongoing validity of the controller-to-processor EU Standard Contractual Clauses (“SCCs”), subject to an adequacy assessment and, if necessary, additional safeguards to protect the personal data transferred pursuant to the SCCs. The guidance is notable because it is the first substantive guidance from a DPA following the Schrems II judgment (although the guidance is only applicable to companies established in the federal state of Baden-Württemberg).

On July 28, 2020, German supervisory authorities (Datenschutzkonferenz, the “DSK”) issued a statement reiterating the requirement for additional safeguards when organizations rely on Standard Contractual Clauses (“SCCs”) or Binding Corporate Rules (“BCRs”) for the transfer of personal data to third countries in the wake of the Court of Justice of the European Union’s (the “CJEU”) invalidation of the Privacy Shield Framework. In its July 16, 2020 judgment, the CJEU concluded that SCCs issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, subject to the need to assess whether additional safeguards are required depending on the recipient jurisdiction. In this same decision, the CJEU struck down the EU-U.S. Privacy Shield Framework.

On July 24, 2020, the European Data Protection Board (the “EDPB”) published a set of Frequently Asked Questions (the “FAQs”) on the judgment of the Court of Justice of the European Union (the “CJEU”) in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, but it struck down the EU-U.S. Privacy Shield framework. With its FAQs, the EDPB sought to provide responses to some of the many questions organizations are asking in the aftermath of the Schrems II ruling.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) issued its landmark judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. Unexpectedly, the Court invalidated the EU-U.S. Privacy Shield framework.

In one of the most important cases on global data transfers, the Court of Justice of the European Union (“CJEU”) will rule on the validity of the Standard Contractual Clauses (“SCCs”) in the Schrems II case (case C-311/18) on July 16, 2020. Invalidation of the SCCs would leave businesses scrambling to find an alternative data transfer mechanism. But there may be significant practical challenges for businesses even if the SCCs survive.

On December 19, 2019, the Advocate General of the Court of Justice of the European Union (the “CJEU”) handed down his opinion in the so-called “Schrems II” case (case C-311/18). He recommended that the CJEU uphold the validity of the Standard Contractual Clauses (“SCCs”) as a mechanism for transferring personal data outside of the EU. Given that SCCs are the key data transfer mechanism used by many organizations to transfer personal data outside of the EU, the opinion has far-reaching repercussions and will be welcomed by businesses across the globe.

On July 9, 2019, the hearing in the so-called Schrems II case (case C-311/18) took place at the Court of Justice of the European Union (“CJEU”) in Luxembourg. The main parties involved in the proceedings, the Irish Data Protection Commissioner (“Irish DPA”), Facebook Ireland Ltd. and the Austrian activist Max Schrems, presented their arguments to the court. In addition, a number of other stakeholders intervened during the hearing, including representatives of the European Parliament, the European Commission, the European Data Protection Board, several EU Member States (including Austria, France, Germany, Ireland, the Netherlands and the UK) and the U.S. government, as well as a number of industry lobby groups and the Electronic Privacy Information Center.

On June 13, 2016, the U.S. government expressed its wish to join the legal proceedings brought by Max Schrems concerning the validity of international data transfers under EU Standard Contractual Clauses.

Along with the U.S. government, the Irish Business and Employers Confederation and the Business Software Alliance, an industry trade group, also informed Ireland’s High Court of their desire to be added to the case as amici curiae, or "friends of the court."