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EU’s Revamped SCCs
Published on June 29, 2021 AUTHOR - PRIVACY RESEARCH TEAM
In June 2021, the European Commission adopted revamped Standard Contractual Clauses (SCC) to enable European companies to transfer data securely around the world. These revamped SCCs provide added protections to cross border data transfers to non-adequate countries outside of the EU.
Background:
As per the GDPR, personal data transfers to another country outside the European Union can take place only when an adequate level of protection is ensured or there are safeguards in place to ensure the level of protection is essentially equivalent to that currently guaranteed inside the EU. The safeguards include Binding Corporate Rules (BCRs), Standard Contractual Clauses (SCCs), and ad-hoc contractual clauses.
On 16 July 2020, in what became known as the Schrems II case, the Court of Justice of the European Union (ECJ) invalidated the European Commission’s EU-US Privacy Shield arrangement but upheld the use of SCCs to transfer data securely outside the EU. For SCCs to be valid however, data exporters were required to review the legal regime of the country data was transferred to and assess if the SCCs would be an effective protection for the transferred data. If the SCCs were not adequate protection, data exporters had to assess the risks to the transferred data and undertake supplementary measures to protect it further.
Heavily influenced by and as a response to the comments of the ECJ in Schrems II, the European Commission adopted two new sets of SCCs, one for the transfer of personal data to third countries and one for use between controllers and processors to replace the ones adopted in 2004 and then in 2010.
Let’s look into some of the key points of these new SCCs:
SCCs for transfer of personal data to third countries:
The new SCCs retain the same modular approach used in the previous draft, comprising four distinct modules, to enable businesses to identify the correct module in light of their circumstances:
- Transfer controller to controller (referred to as C2C hereon)
- Transfer controller to processor (referred to as C2P hereon)
- Transfer processor to processor (referred to as P2P hereon)
- Transfer processor to controller (referred to as P2C hereon)
Applicability:
- The revamped SCCs are applicable starting June 27th, 2021.
- Both the old and revamped SCC can be signed up to September 27th, 2021 (3 months after the start date). After this date, only the revamped SCC can be signed.
- Current SCCs must be replaced with the revamped SCC by December 27th, 2022.
Key Takeaways:
Some of the key takeaways of the revamped SCCs are as follows:
- There is a lot of focus on accountability, compliance and audit obligations. They especially require processors who process transferred data in a non-adequate country to provide documentation to show that they have processed data for the designated purpose in compliance with the SCCs. Updated Records of Processing Activities (RoPA) reports will help organizations fulfill these obligations and demonstrate compliance.
- Data minimization, accuracy, purpose limitation and storage limitation obligations apply to all parties in all transfers. A comprehensive data mapping exercise will help organizations in fulfillment of these principles.
- Parties are required to undertake appropriate security measures with a special focus on encryption and pseudonymization for the protection of processing of personal data.
- Importer data controllers are required to respond to even more varieties of data subjects’ requests.
- Transfer impact assessments have been made mandatory. All parties in all transfers are required to consider the laws and practices of the third country of destination, including any requirements to disclose the personal data or measures authorizing access by public authorities, to determine if they can fulfill the requirements of the SCCs.
- Breach notification obligations vary depending on whether the data transfer agreement is C2C, C2P or P2P. For importer data controllers, they may be required to notify data breaches to the data exporter, the competent supervisory authority along with the affected data subjects. For importer processors, they may only need to notify the exporter.
- The new SCCs are on-par with the GDPR in terms of data protection requirements.
- With the docking clause, the SCCs allow multiple data exporting parties to contract and the addition of new parties over time.
Overall, the new SCCs align with the requirements of the GDPR and Schrems-II. Businesses must now implement revamped SCCs as well as conduct transfer impact assessments to fully comply with Schrems-II requirements and ensure secure transatlantic data transfers. Read Post Schrems-II: 5 Essentials To Dos for Transatlantic Data Flows to learn what compliance actions you’re required to take immediately if you are still using the old SCCs.
Securiti offers an all-encompassing and comprehensive Schrems-II solution to enable companies to conduct effective cross-border data transfer risk assessments, identify and review data transfers from the European Union and remediate discovered vendor risks as per the applicable legal requirements. Securiti also offers automated data mapping, DSR rights fulfillment, data breach management and security controls to help you comply with the obligations imposed by the revamped SCCs.
Click here to find out obligations of parties for each data transfer module.
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- Secure Fulfillment of Data Access
- Automate Processing of Rectification Requests
- Automate Erasure Requests
- Automate Objection & Restriction of Processing Requests
- Continuous Monitoring & Tracking
- Automate People Data Graph
- Meet Cookie Compliance
- Monitor & Track Consent
- Assess Japan APPI readiness
- Map Data Flows
- Manage Vendor Risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Qatar DPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Bahrain PDPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Privacy Policy & Notice Management
BackSnowflake is a cloud based data warehouse that allows organizations to run large scale data analytics projects to uncover business insights, run or train machine learning models, and modernize their data infrastructure.
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The Amazon S3 (Simple Storage Service) is a web-service which allows for scalable storage solutions for data archival, backup, and recovery purposes.
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Microsoft O365 is the ubiquitous productivity suite for every business worker. Users rely on Office products such as OneDrive and SharePoint to collaborate with their co-workers.
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Organizations want to migrate their on-premises data to cloud data stores to take advantage of scale and flexibility while reducing operational cost of managing on-premises infrastructure. However, due to privacy regulations such as GDPR, CCPA administrators have to ensure that data is migrated in compliance with these laws.
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Protecting sensitive content is a priority for all organizations, however, due to volume of sensitive content and
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While data aids in business decision making, global privacy regulations such as GDPR, CPRA require organization to identify personal & sensitive data & use only for its intended purpose and implement adequate protection.
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Securiti enables organizations to meet multiple regulations around the world and helps with compliance requirements through AI-driven PI data discovery, DSR automation, documented accountability, enhanced visibility into data processing activities and AI-driven process automation.
Securiti is a complete PrivacyOps Solution.
View all solutionsThe California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 and is scheduled to come into effect on January 01, 2020. Often compared to GDPR, CCPA protects consumers from mismanagement of their personal data and gives the consumer control over what data is collected, processed, shared or sold.
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The California Privacy Rights Act (CPRA) will take effect from January 1, 2023, and will apply to personal information collected on or after January 1, 2022. Enforcement of the CPRA will start six months later (July 1, 2023). The CPRA builds upon the CCPA, strengthening user privacy for California residents.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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On 13 October 2020, the National People's Congress of the Republic of China submitted the long awaited draft of the Personal Information Protection Law (Draft PIPL) to the Standing Committee meeting for preliminary review. This draft was officially released for the public consultation on 21 October, 2020. The consultation period will last until 19 November 2020.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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South Korea has a general law and several special laws that cover data protection and individuals' privacy. South Korea's data protection regime is considered one of the strictest data protection regimes owing to its notification requirements, opt-in consent, extensive data subject rights, mandatory data breach notifications, and heavy sanctions in case of non-compliance.
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The Act on the Protection of Personal Information (the "APPI'') regulates personal related information and applies to any Personal Information Controller (the “PIC''), that is a person or entity providing personal related information for use in business in Japan. The APPI also applies to the foreign PICs which handle personal information of data subjects (“principals”) in Japan for the purpose of supplying goods or services to those persons.
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Qatar is the first gulf country that has passed a national data privacy law and has paved the way for all other gulf countries to follow suit. In 2016, Qatar enacted Law no. 13 Concerning Personal Data Protection (the “DPL”). Qatar became the first Gulf Cooperation Council (GCC) member state to issue an “European Style” applicable data protection law. The DPL establishes a certain degree of personal data protection, provides data subject rights, and prescribes the guidelines for organizations for the processing of personal data within Qatar.
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Bahrain has become a part of the countries that have enacted a data privacy regulation to protect the rights of their residents. On 12 July 2018, Bahrain drafted its law on data protection regulation, Law No. 30. This then went on to go into effect on the 1st of August 2019 as the Bahrain Personal Data Protection Law (PDPL) and supersedes all other laws. The PDPL recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate purposes.
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