ENSURING SAFE CROSS-BORDER DATA TRANSFERS: A GUIDE TO TRANSFER IMPACT ASSESSMENTS

INTRODUCTION:

In today’s interconnected world, businesses operate across borders, serving customers globally. This inevitably leads to the transfer of personal data across jurisdictions. While such transfers enable innovation and commerce, they also expose personal data to significant risks, particularly when moving between countries with varying levels of data protection.

The growing reliance on cross-border data flows has raised critical concerns about safeguarding personal information. As highlighted in Recital 101 of the General Data Protection Regulation (GDPR), the increase in such flows has raised new challenges and concerns regarding the protection of personal data. The GDPR emphasizes that when personal data leaves the European Union (EU) to third countries or organizations, the level of protection guaranteed within the EU must not be compromised. To address these challenges, the GDPR establishes stringent requirements to ensure personal data remains secure, even when transferred to jurisdictions with less robust data protection frameworks. A key mechanism for achieving this is the Transfer Impact Assessment (TIA).

The TIA is a vital tool for organizations to evaluate the risks associated with cross-border data transfers and to implement appropriate safeguards. It helps ensure compliance with data protection regulations while demonstrating accountability, transparency, and a commitment to safeguarding individual rights. By proactively assessing potential vulnerabilities, businesses not only meet their legal obligations but also foster trust with their customers, ensuring that personal data remains protected in a globalized economy.

This blog explores the significance of Transfer Impact Assessments, the steps involved in conducting them, and their critical role in facilitating safe and compliant cross-border data transfers, including insights into India’s Digital Personal Data Protection Act (DPDPA).

WHEN DOES A TRANSFER OF PERSONAL DATA OUTSIDE THE EEA OCCUR?

The GDPR does not explicitly define what constitutes a transfer of personal data outside the European Economic Area (EEA). However, the European Data Protection Board (EDPB) has outlined three key criteria that must all be met to identify such a transfer:

1. A data controller or processor involved in the processing is subject to the GDPR.

2. This controller or processor shares, transmits, or otherwise makes personal data accessible to another organization (controller or processor).

3. The receiving organization is located in a country outside the EEA or is an international organization.

When these conditions are fulfilled, the data transfer is considered to occur outside the EEA and must comply with GDPR requirements for cross-border transfers.

WHY IS A TIA IMPORTANT?

With the rise of privacy regulations worldwide, including GDPR, organisations must adhere to specific legal standards when transferring data internationally. A Transfer Impact Assessment (TIA) must be conducted by data controllers or processors (referred to as exporters) before transferring personal data from a European Economic Area (EEA) country to a non-EEA country, provided the transfer relies on a GDPR tool under Article 46. However, this is not required if the destination country is covered by an adequacy decision by the European Commission as given in Article 45 or if the transfer is based on one of the exceptions listed in Article 49 of the GDPR.

The purpose of a TIA is to evaluate whether the data importer in the third country can meet the obligations specified in the data transfer agreement. This involves assessing the legal framework and practices of the destination country, particularly regarding access to personal data by government authorities. If any risks or shortcomings are identified, the TIA helps determine if additional measures can be applied to ensure the level of data protection required by EU laws.

Since the importer typically holds critical information about the local laws and practices, their cooperation is essential for completing the TIA. For relationships between controllers and processors, processors are required to share this information with controllers under Article 28 of the GDPR. Simply providing a summary or conclusion without detailed insights into the local laws, government practices, or specific transfer circumstances does not fulfil the processor’s obligations under Article 28(3)(h) of the GDPR.

READ ORIGINAL ARTICLE HERE- ENSURING SAFE CROSS-BORDER DATA TRANSFERS: A GUIDE TO TRANSFER IMPACT ASSESSMENTS