Hogan Lovells comments on privacy case that could impact international data transfers

LONDON, 17 December 2019 - Eduardo Ustaran, Co-Head of the global Privacy and Cybersecurity practice at Hogan Lovells, said: “The Advocate General’s Opinion in the so-called ‘Schrems II’ CJEU data protection case is due out on Thursday morning. The case threatens the viability of standard contractual clauses as we know them to transfer personal data overseas. The case could be a game-changer for data transfers from the EU to the entire world, including for EU-U.S. data transfers and EU-UK data transfers after Brexit.

“UK companies receiving data from the EU should keep a close eye on this and prepare for any potential impact on trade with other countries. If the UK leaves the EU as planned, transfers from the EU27 to the UK will be considered transfers to a ‘third country’ under the GDPR, and once the Transition Period ends in December 2020, will require some mechanism to legitimise them. The judgment to be issued within weeks of the Opinion in this case could seriously restrict the options for continuing lawful data flows into the UK after Brexit.

“The case also questions parts of the EU-U.S. Privacy Shield, the transatlantic data transfer pact adopted in 2016 to replace the Safe Harbor framework. There is a possibility that the court might uphold the validity of contractual clauses for transfers of data to the U.S., because of the U.S. government commitments, but render them invalid in the absence of similar commitments in other jurisdictions. So while the standard contractual clauses may be suitable for transfers to the U.S., they could be inadequate for transfers to, say, Russia or China.”


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