27 December 202219 January 2023 Nigel Miller

As the deadline to replace old EU SCCs passes …

Companies subject to the EU GDPR and reliant on standard contractual clauses (“SCCs”) to transfer personal data out of the EEA are reminded that the regulatory deadline to update their existing agreements has now passed.

EU GDPR Requirements

To recap, on 4 June 2021, we saw the European Commission adopt new, modernised EU SCCs for the transfer of personal data from the EEA to third countries.

Organisations were afforded a transitional period, which required that they:

cease using the old SCCs in new contracts by 27 September 2021, and
transition all existing contracts over to the new EU SCCs by 27 December 2022.

This means that organisations should have now adopted the new EU SCCs in all existing contracts involving international transfers of personal data under the EU GDPR. If they have not already done so, they should prioritise doing so as soon as possible.

UK GDPR Requirements

As the UK is no longer part of the EU, the new EU SCCs are not a valid transfer mechanism under the UK GDPR. However, in March 2022, the UK ICO formally adopted:

the IDTA, a standalone agreement – similar to (but not the same as) the new EU SCCs – for international data transfers from the UK to third countries;
the UK Addendum, which can be appended to, and have the effect of modifying, the new EU SCCs so that they work for international data transfers from the UK to third countries.

These were discussed in further detail in our previous article “New UK International Data Transfer Agreement.”

In respect of data transfer arrangements subject to the UK GDPR, contracts entered into prior to 21 September 2022 can rely on old EU SCCs until March 2024 (provided there are no modifications to the data transfer operations under those contracts) but, from now, new contracts must incorporate either the IDTA or the new EU SCCS-plus-UK Addendum-combination.

In Other News

Following Schrems II, businesses – whether subject to the EU GDPR or UK GDPR – relying on SCCs for their data transfers to recipients in third countries are also required to undertake and document transfer risk assessments. SCCs alone are no longer sufficient. Whilst the European Data Protection Board (EDPB) already published recommendations on this topic in June 2021 (which can be accessed here) in respect of restricted transfers subject to the EU GDPR, the ICO only recently published updated guidance on transfer risk assessments in respect of restricted transfers made subject to the UK GDPR, which can be accessed here.

Together with its guidance, the ICO have also published a TRA tool which can be used to help businesses carry out their TRAs. It is worth noting that the ICO have given businesses the option of conducting their assessments in line with the EDPB recommendations: either option is acceptable to the ICO.

11 April 2022 Nigel Miller

new Trans-Atlantic Data Privacy Framework

The European Data Protection Board has welcomed the announcement of a political agreement in principle between the European Commission and the United States of a new Trans-Atlantic Data Privacy Framework.

The proposed Trans-Atlantic Data Privacy Framework seeks to address the concerns which led to the Privacy Shield framework being found by the European Court to be invalid. The proposed new Framework will include:

Safeguards to limit access to data by US intelligence authorities to what is necessary and proportionate to protect national security.
A new two-tier redress system to investigate and resolve complaints from Europeans about access to data by US intelligence authorities. This includes a Data Protection Review Court.
Strong obligations for companies processing data transferred from the EU. This will include the requirement to self-certify their adherence to the US Department of Commerce.
Specific monitoring and review mechanisms.

When implemented, the Framework will provide a legal basis for personal data flows from the EU to the US.

However, it may be some time before organisations can rely on the new Framework as it has to be approved by the European Commission. At this stage, therefore, the Framework cannot be used for data transfers from the EU to the US and data exporters must continue to use Standard Contractual Clauses and to take the steps required to comply with the Schrems II decision of 16 July 2020.

And even when it is adopted, it will, like its predecessors (Safe Harbor and Privacy Shield) be open to legal challenge by privacy groups.

In any event, the Framework will not apply to transfers from the UK to the US, and the UK has previously indicated that the US is a priority for an “adequacy” partnership.

2 February 202216 March 2022 Nigel Miller

New UK International Data Transfer Agreement

On 2 February 2022 the UK Government’s Department for Culture, Media and Sport put before Parliament the International Data Transfer Agreement (IDTA), an addendum to the new EU standard contractual clauses (New EU SCCs) (Addendum) and various transitional provisions. The documents can be accessed here.

The IDTA has been created as the UK equivalent to the New EU SCCs for international data transfers. The EU commission modernised the EU SCCs on 4 June 2021. The New EU SCCs can be used by parties to incorporate standardised clauses into their contracts. These clauses deal with different sections, for instance for data controllers and processors. The IDTA is a standalone agreement that will apply to all transfers of personal data outside of the UK regardless of whether a party is a data controller or processor. Whilst there are a few exceptions, this includes data importers who are subject to the rules of the UK GDPR.

When the New EU SCCs were published on 4 June 2021, they didn’t apply in the UK due to Brexit. The IDTA and the Addendum have been created to replace the current SCCs used in the UK. The IDTA will take the binding effects of the European Court of Justice Schrems II[1] decision into account.

By addressing the necessary UK legal requirements, the Addendum will allow data exporters who continue to operate in the EU and UK to rely on the New EU SCCs without the need for an IDTA. The intent is to simplify the process for data exporters and will be supported by further guidance from the ICO on the risk protection steps that data exporters will need to undertake when transferring data.

The introduction of the IDTA and Addendum has been welcomed by the ICO, they have stated that “The IDTA and Addendum will also help to support the UK’s digital economy, by enabling the global flow of people’s personal data in order to deliver goods and services.”

The ICO will continue to develop the following guidance to provide help and support for businesses:

Clause by clause guidance to the IDTA and Addendum.
Guidance on how to use the IDTA.
Guidance on transfer risk assessments.
Further clarifications to the international transfers guidance.

The ICO have stated that the IDTA and the Addendum “are immediately of use to organisations transferring personal data outside of the UK“. The ICO hopes, subject to Parliamentary approval, that these changes will grant parties more confidence when entering into data transfer agreements. The ICO have confirmed that if approved, the IDTA, Addendum and transitional provisions will come into force on 21 March 2022.

[1] Previously EU to US transfer of data was permitted under the Privacy Shield Decision. This was ruled to be illegal and stricter requirement for data transfer were expected based on the SCCs.

11 October 202128 January 2022 Nigel Miller

International data transfers – the perfect storm

The position on international data transfers remains highly complex as a result of the perfect storm of Brexit, the CJEU Schrems II decision in 2020, new EU Standard Contractual Clauses (SCCs) and a proposed new UK international data transfer agreement (IDTA).

So far as transfers from the UK are concerned, the ICO’s consultation on its draft IDTA and guidance, which is intended to replace Standard Contractual Clauses (SCCs) for transfers from the UK, closed on 11 October 2021. We expect to see the new IDTA coming onstream in 2022. The ICO has also proposed a practical solution that the EU SCCs could be used for transfers from the UK with a short Addendum.

There is likely to be a short grace period when we can continue to use the old SCCs for new agreements, and then a 24-month period in which all existing agreements will need to be upgraded to the new format.

In the meantime, so far as transfers from the UK to countries other than in the EU (or other countries with adequacy findings) are concerned, we can continue to use the old (but not the new) EU approved SCCs, although the ICO has issued an adapted version of the EU SCCs which can be used with updated post-Brexit references.

So far as transfers from the EEA are concerned, we must now use the new (but not the old) EU SCCs. Moreover, all existing agreements based on the old EU SCCs will need to be migrated to the new EU SCCs by the end of 2022.

So, at the moment, if you have transfers from both the UK and the EEA, then a different approach is needed for each.

But it is not enough simply to sign up the IDTA / SCCs. Following Schrems II, you also need to undertake a transfer risk assessment (TRA) and, as needed, implement supplemental measures.

In this respect, the ICO has provided a draft TRA Tool as a guide to the process. This can be a relatively complex exercise but the ICO TRA Tool provides practical support. As the ICO comments, “If you can show that you have used your best efforts in completing a TRA, whether or not you use this TRA Tool, if it later turns out that your decisions were not correct, we will take this into account in our likely approach to any breach of …UK GDPR”.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.

Share this:

Share this:

Share this:

Share this: