Question:

We want to transfer data abroad to a non-EEA member country and we have not been able to obtain consent from the data subject. How should we proceed? u2028

Answer:

If you are not exempt from the eighth principle because you have not been able to obtain consent from the data subject, and the transfer is not to an European Economic Area (EEA) member country, you will need to consider the following points:

If the data is being transferred to Andorra, Argentina, Canada, Guernsey, Hungary, the Isle of Man, Israel (with certain limitations), Switzerland, the Faroe Islands (with certain limitations) or Jersey, the transfer can go ahead because these countries are regarded as having adequate protection in place. A list of “adequate” countries is published on the European Commission website.

If you are transferring personal data to the United States, find out whether the organisation you are sending the data to has signed up to the US “Safe Harbor scheme”, by checking the list on the website. If it has, the transfer can take place as the necessary protections are deemed to be present. 

Finally, if the country you are transferring to does not fall within any of the categories above, then you will have to carry out a risk assessment before carrying out the transfer.

You will need to consider whether the country in question has adequate protections in place, bearing in mind the nature of the information being transferred, how the information will be used and for how long and the laws and practices of the country you are transferring to. It is recommended that you speak with your lawyer before making your decision to transfer the data in this situation.

Tomorrow: Are we allowed to transfer our customer data abroad?

Peter Harthan is a solicitor at Riverview Solicitors.

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