Transferring Personal Data Outside of the EEA

|
|
PUBLISHED on
22
July
2022

This blog looks at a very specific area of the GDPR - Article 28 and data transfer outside of the EEA.  One of the ways in which you can legitimise an ex-EEA data transfer is by using the standard contractual clauses (SCCs).

Article 28 mandates a number of requirements that must be placed on data processors, by data controllers, via a contract.  The question is, are the SCCs sufficient to meet these requirements?  Whilst the SCCs are pretty comprehensive, they were drafted before the GDPR came into effect and, as a result, not all of the requirements of Article 28 are addressed by the SCCs.

So, what can you do?

The challenge with the SCCs is that they must be used verbatim.  Any change to the wording, even if it has no material effect on the interpretation, means that the parties cannot claim to be using the SCCs.  However, it is permissible to add clauses or incorporate the SCCs in a broader contract, ’provided nothing in the other contract or additional clauses alters the effect of any of the model clauses’.

So, if you are outsourcing data processing to processors outside the EEA and transferring PII, then you should supplement, and not solely rely on, the SCCs.  The specific gaps between Article 28 and the SCCs are, broadly speaking, that the SCCs (and Appendix where applicable) do not:

  • Address the duration of processing
  • Contain a requirement for the data importer to commit to confidentiality
  • Contain a requirement to support the response to a data subject request
  • Comply with the timing or cooperation requirements relating to a data breach
  • Address the processor participating in a data protection impact assessment (DPIA)
  • Address all audit requirements Address onward transfer of data outside of the EEA.

Do you need assistance in improving your GDPR compliance position?

URM can offer a host of consultancy services to improve your DP policies, privacy notices, DPIAs, ROPAs, data retention schedules and training programmes etc.
Thumbnail of the Blog Illustration
Data Protection
Published on
5/2/2025
Analysis of Fines Imposed by the Information Commissioner’s Office in 2024

URM’s blog breaks down the fines issued by the ICO in 2024 for data protection breaches, highlighting emerging trends in their approach to enforcing compliance.

Read more
Thumbnail of the Blog Illustration
Data Protection
Published on
19/1/2024
Analysis of Fines Imposed by the Information Commissioner’s Office in 2023

URM’s blog breaks down the fines issued by the ICO in 2023 for data protection breaches, highlighting emerging trends in their approach to enforcing compliance.

Read more
Thumbnail of the Blog Illustration
Data Protection
Published on
22/11/2024
Updated Data Protection Laws Introduced by Chile and India

URM’s blog explores the different requirements introduced by these new laws, and the likelihood of a subsequent UK/EU adequacy decision for each nation.

Read more
Thank you this was really helpful, I am looking forward to the Cyber Essentials webinar.
Webinar 'How to Develop and Maintain Robust Business Continuity Plans'
contact US

Let us help you

Let us help you in your compliance journey by completing the form and letting us know how we can best support you.