PART 3Law enforcement processing

CHAPTER 5Transfers of personal data to third countries etc

General principles for transfers

75Transfers F1subject to appropriate safeguards

F2(1)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(1A)

A transfer of personal data to a third country or an international organisation is made subject to appropriate safeguards only if—

(a)

an appropriate legal instrument binds the intended recipient of the data (see subsection (4)), or

(b)

the controller, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfer or that type of transfer (see subsection (5)).

(2)

The controller must inform the Commissioner about the categories of data transfers that take place in reliance on F4subsection (1A)(b) but not in reliance on section 73(4)(aa) (transfer to processor).

(3)

Where a transfer of data takes place in reliance on F5this section but not in reliance on section 73(4)(aa) (transfer to processor)—

(a)

the transfer must be documented,

(b)

the documentation must be provided to the Commissioner on request, and

(c)

the documentation must include, in particular—

(i)

the date and time of the transfer,

(ii)

the name of and any other pertinent information about the recipient,

(iii)

the justification for the transfer, and

(iv)

a description of the personal data transferred.

F6(4)

For the purposes of this section, a legal instrument is “appropriate”, in relation to a transfer of personal data, if—

(a)

the instrument is intended to be relied on in connection with the transfer or that type of transfer,

(b)

at least one competent authority is a party to the instrument, and

(c)

each competent authority that is a party to the instrument, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfers, or types of transfer, intended to be made in reliance on the instrument (see subsection (5)).

(5)

For the purposes of this section, the data protection test is met in relation to a transfer, or a type of transfer, of personal data if, after the transfer, the standard of the protection provided for the data subject with regard to that personal data, whether by a binding legal instrument or by other means, would not be materially lower than the standard of the protection provided for the data subject with regard to the personal data by or under—

(a)

this Part, and

(b)

Parts 5 to 7, so far as they relate to processing by a competent authority for any of the law enforcement purposes.

(6)

For the purposes of subsections (1A)(b) and (4)(c), what is reasonable and proportionate is to be determined by reference to all the circumstances, or likely circumstances, of the transfer or type of transfer, including the nature and volume of the personal data transferred.

(7)

In this section, references to the protection provided for the data subject are to that protection taken as a whole.

F7(8)

For provision about standard data protection clauses which the Commissioner considers are capable of securing that the data protection test in this section is met, see section 119A.