Q&As

Have the standard contractual clauses (model clauses) been updated for the General Data Protection Regulation?

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Published on LexisPSL on 23/07/2019

The following Information Law Q&A provides comprehensive and up to date legal information covering:

  • Have the standard contractual clauses (model clauses) been updated for the General Data Protection Regulation?
  • Background to the standard contractual clauses
  • Position under Chapter V of the GDPR
  • Other obligations under the GDPR
  • Implications of Brexit

Have the standard contractual clauses (model clauses) been updated for the General Data Protection Regulation?

Background to the standard contractual clauses

There was a general prohibition in Directive 95/46/EC (the Data Protection Directive), on controllers transferring personal data to any territory outside the EEA unless an ‘adequate’ level of privacy protection was ensured for the data transferred. This data export restriction was reflected in the Data Protection Act 1998 (DPA 1998) as the eighth data protection principle and is discussed in Practice Note: Data protection principles under the DPA 1998 [Archived]. See Article 26(2) of the Data Protection Directive and DPA 1998, Sch 1, Pt I, and ss 13–15 (the eighth principle).

There were, however, some exemptions to the general data export prohibition. Controllers based in the EU could transfer personal data to non-EEA countries which provided ‘adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights’. Under the Data Protection Directive, an adequate level of privacy protection could be found if one of the ‘adequacy solutions’ that had been approved by the European Commission (the Commission) was in place, for example, by using the EU Standard Contractual Clauses (SCCs) (also known as the Model Clauses) which have been approved by the Commission. See Practice Note: UK GDPR and EU GDPR—transfers

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