As explained before (see EPDB GUIDELINES: PART 1), the controller or processor in an “international transfer” situation needs to comply with the conditions of Chapter V of the GDPR to protect personal information that would be transferred to a third country or an international organization.
So far, since China has not been recognized by the European Commission as a country providing adequate protection (Art. 45 of the GDPR), controllers and/or processors transferring data to China shall implement appropriate safeguards provided for in Article 46 before the transfer, including:
-Standard Contractual Clauses (SCCs);
-Binding Corporate Rules (BCRs);
-Code of conduct
-Certification Mechanisms;
-Ad hoc contractual clauses;
-International agreements/administrative arrangements.
In the absence ofan adequacy decision under Art. 45 or appropriate safeguards pursuant to Art.46, a transfer of personal data may take place if:
- the data subject gives explicit consent after being informed of risks oftransfer;
- the transfer is necessary for the performance of a contract between datasubjects and controllers or processor or implementation of pre-contractualmeasures;
- the transfer is necessary for the conclusion or performance of acontract between the controller or the processor and a third party, but thecontract is made in the interest of the data subject;
- the transfer is necessary for the important reason of public interests;
- the transfer is necessary for legal claims;
- the transfer is necessary to protect the vital interests of datasubjects or other persons, where the data subject is physically or legallyincapable of giving consent;
- the transfer is made from a register which, according to Union or MemberState law, is intended to provide information to the public and which is opento consultation either by the public in general or by any person who candemonstrate a legitimate interest.
At Wang Jing & GH Law Firm we are always ready toassist our clients regarding new trends and rules that may have a major impacton your business in China and abroad. If you believe you could be subject tothe above rules, please don’t hesitate to reach us for a consultation.
