BACKGROUND

On 30 March 2021, the European Commission, in a joint statement with the Personal Information Protection Commission, the data protection authority of the Republic of Korea (Korea), declared that Korea ensured a level of protection for personal data that is similar to the level provided in the European Union (the EU) and, as such, is a jurisdiction deemed “adequate.” Further to this joint declaration, the European Commission completed its internal procedures and formally adopted the substance of this joint statement in a draft adequacy decision published on 14 June 2021. Once finalized, businesses will be allowed to transfer personal data freely from the EU and European Economic Area (EEA) to Korea without being required to provide further safeguards as required for “third country transfers” under the EU General Data Protection Regulation 2016/679 (GDPR). Once so adopted, the adequacy decision would cover transfers of personal data to commercial operators located in Korea, as well as Korean public authorities. However, the transfer of personal credit information that is subject to jurisdiction of Korea’s Financial Services Commission will be excluded from the coverage of the adequacy decision.  

The adequacy decision only relates to the transfer of personal data from the EU/EEA to a recipient in Korea, but it does not cover the general applicability of GDPR. In this context, any company (even outside the EU/EEA) that directly collects personal data from EU residents in connection with offering goods or services or monitoring of behavior of EU residents will still need to comply with the obligations set out in the GDPR for its collection of personal data. Also, significantly, the adequacy decision only covers data flow in one direction, from the EU to Korea, but not in the opposite direction, i.e., from Korea to the EEA. As noted below, barring any further statutory amendments, Korean privacy laws still require data handlers to obtain the consent of data subjects (as opposed to an opt-out) prior to transferring their personal data outside of Korea.

The conclusion of adequacy talks between Korea and the European Commission is a major step in their ongoing four-year dialogue regarding mutual recognition of personal data protection regimes. Korea has been preparing for this adequacy decision since 2015, when the Korean government established a joint public-private sector task force, which was charged with conducting data regulation-related feasibility studies, self-assessments, and comparative analyses in preparation for the first round of adequacy negotiations with the EU in 2017. After two extensive rounds of adequacy negotiations between the representatives of the European Commission and Korea ended without an adequacy finding, Korea decided to make significant amendments to its data protection laws. Such amendments were enacted by the National Assembly, Korea’s national legislature, in January 2020 and became effective in August 2020, thus paving the way for the March 2021 joint statement.

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Depending on whether you are an optimist or a pessimist, it will have taken the European Commission either three years and two weeks (since the entry into force of the General Data Protection Regulation (GDPR) or eleven months (since the Schrems II decision — see our Alert here) to publish its finalized revision of the most flexible tool to allow for the transfer of personal data to partners located in countries not otherwise providing an adequate level of data protection (Adequate Countries): the Standard Contractual Clauses (SCCs).

While Schrems II made headlines with its cancellation of the Privacy Shield framework, this mechanism only affected 5,000 companies in the United States. SCCs, on the other hand, remain the most widely used instrument to ensure an end-to-end sufficient level protection of personal data covered by European data protection. With their original version dating back 2001, an update was severely needed to align them with GDPR’s extensive reach and requirements.

IN A NUTSHELL:

  • The new SCCs were published on 4 June 2021:
    • Starting on 27 June 2021, companies will need to transition to the new SCCs;
    • On 27 December 2022, companies must have finalized their transition to the new SCCs.
  • Affected companies include:
    • EU-based entities sharing data with partners and providers located in countries deemed not to offer an adequate level of protection;
    • Non EU-based entities otherwise subject to GDPR’s extensive territorial reach (see our Alert here) sharing data with partners and providers located in countries deemed not to offer an adequate level of protection; and
    • Non-EU based entities receiving or processing personal data from or on behalf of EU-based partners or non-EU partners otherwise subject to GDPR.
  • Key new elements include:
    • Data exporting entities will need to assess the importing countries’ regulatory framework;
    • Where such framework cannot safeguard the transferred data subject to GDPR, additional measures must be implemented contractually, organizationally and/or technically;
    • Each and every step of the assessment, and the relevancy of the remediation measures, must be thoroughly documented; and
    • In the case of a controller/processor/sub-processor relationship, the new SCCs consolidate the requirements into a single agreement addressing the data processing requirements under Article 28 GDPR and the data transfer agreement.
  • While the new SCCs provide for a general framework, many issues are left to:
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This article names K&L Gates among Global Data Review’s inaugural GDR 100, a ranking of the world’s best data law firms. The GDR 100 is the only global ranking that captures the capabilities, track record, and market reputation of the leading firms in the field. The ranking is based on in-depth submissions submitted by hundreds of law firms around the world, and profiles K&L Gates lawyers including Melbourne partner Cameron Abbott and Paris partner Claude-Etienne Armingaud. Read the article here (subscription required). 

Les 12 et 13 février 2020, l’IAPP organise sa conférence “Data Protection Intensive: France” — retrouvez nous lors du panel “Global Developments: CCPA and Beyond” avec Delphine Charlot de Mastercard et les meilleurs moments ci-dessous:

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