All eyes and ears on data transfer solutions – everywhere

As we await the result of the Brexit negotiations and what will be the future route for EU-UK data transfers, it is clear that international data transfers is the matter of the moment worldwide. In the aftermath of the Schrems II decision by the Court of Justice of the European Union, the European Commission has just released its draft implementing decision on Standard Contractual Clauses for transferring personal data to third countries (p.11 and p.31). The court decision has implications also for Asia-Pacific countries. Our correspondents argue that there is concern that the decision may encourage these countries to adopt data localisation laws.

The European Data Protection Board has now adopted recommendations on supplementary measures for transfers following Schrems II. Whilst one would not expect immediate enforcement, there is the danger that enforcement action will have to follow if there are individual complaints.

China has issued a draft privacy law, in which one tool for data exports would be a contract with the overseas recipient, in a similar vein as the EU GDPR Standard Contract Clauses.

Looking into the future, the recent US legislative developments in California may pave the way for a federal privacy law, which would probably resolve the dilemma with EU-US data flows. The US Senate Committee on Commerce, Science, and Transportation held a hearing on 9 December to discuss the invalidation of the EU-US Privacy Shield and other matters relating to trans-Atlantic data flows. Once the new administration is in place, we can expect more news on this front. We bring you news of the important but not much talked about UK-US Bilateral Data Sharing Agreement, which has been seen as a possible problem for the UK’s post-Brexit adequacy decision.

See p.28 for a comprehensive analysis of the current requirements for Records of Processing Activities (RoPA) - a GDPR requirement which relates to the old registration duty.

As this is the last issue for 2020, I wish you a safe and happy end of the year, and Merry Christmas.

Laura Linkomies
Editor, Privacy Laws & Business

December 2020