Transferring Personal Data Outside of the EEA

Article 28 mandates a number of requirements that must be placed on data processors, by data controllers, via a contract.  The question is, are the SCCs sufficient to meet these requirements?  Whilst the SCCs are pretty comprehensive, they were drafted before the GDPR came into effect and, as a result, not all of the requirements of Article 28 are addressed by the SCCs.

So, what can you do?

The challenge with the SCCs is that they must be used verbatim.  Any change to the wording, even if it has no material effect on the interpretation, means that the parties cannot claim to be using the SCCs.  However, it is permissible to add clauses or incorporate the SCCs in a broader contract, ’provided nothing in the other contract or additional clauses alters the effect of any of the model clauses’.

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So, if you are outsourcing data processing to processors outside the EEA and transferring PII, then you should supplement, and not solely rely on, the SCCs.  The specific gaps between Article 28 and the SCCs are, broadly speaking, that the SCCs (and Appendix where applicable) do not:

• Address the duration of processing
• Contain a requirement for the data importer to commit to confidentiality
• Contain a requirement to support the response to a data subject request
• Comply with the timing or cooperation requirements relating to a data breach
• Address the processor participating in a data protection impact assessment (DPIA)
• Address all audit requirements Address onward transfer of data outside of the EEA.

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