Guarding Data: German GDPR Tactics for Safe Passage to China
In an increasingly interconnected digital landscape, the need for robust data protection strategies has become paramount. For German businesses eyeing expansion into China or engaging in cross-border data transfers, navigating the intricate web of regulations, particularly under the GDPR (General Data Protection Regulation), poses both challenges and opportunities. Let’s delve into the key considerations and effective strategies to ensure compliance and safeguard sensitive information in this dynamic global arena.
Data regulations in Germany
Under the German legal framework, the safeguard of individual’s privacy is really important. As privacy is considered as a fundamental right. This is manifested in the European Union’s General Data Protection Regulation (GDPR) as well as in the National Legislation. The GDPR is a pivotal piece of legislation and a unified framework for data protection across the EU member states. Its emphasis is on the transparency, accountability and rights of individuals regarding their personal data.
But for Germany, the GDPR is supplemented and supported by the BDSG (Federal Data Protection Act). These are specific rules (by the German government) for processing personal data, they are ensuring compliance with the GDPR. It contains obligations of data controllers and processors, rights of data subjects etc.
What data is affected?
The GDPR only affects “personal” data, which refers to information relating to identifiable natural people. Anonymous data cannot be used to draw conclusions about identifiable individuals, hence it is not covered by the provisions of the GDPR. Other than pseudonymized data, which contains for example ID-numbers or codes – these can be traced to a specific person.
Data transfer from EU to China
There are two regulations which must be complied with:
1. Data transfer itself must be permissible
According to Art. 6 GDPR, data processing in only permitted under specific conditions:
- Consent for a specific purpose
- Contract necessities (the individual is part of the contract (contracting party) and the processing is due to the nature of the contract)
- Legal obligations (legal requirements that require data processing)
- Protection of vital interests
- Public tasks or interest
One of these is enough and they must not be all combined in reality.
2. Data transfer to China must be permissible
Data transfer outside the EU is strictly regulated by the GDPR to ensure compliance. Only if the receiving country guarantees the lawful processing of personal data in line with the GDPR, transfer is permissible. But how can this be achieved? Either via an adequacy decision or by implementing safeguards.
No additional precautions are needed if adequacy decisions exist for the third country. This is certified by the EU Commission. Currently, there is no adequacy decision for data transfer from the EU to China! Hence, suitable safeguards must me implemented before transferring data! For example Binding Corporate Rules (BCRs). These are a type of self-regulation within an international company for regulating data transfer internally within their corporate structure. The supervisory authority in this context is the data protection supervisory authority of an EU member state. Usually, the authority in whose jurisdiction the company wanting to introduce the BCRs has its headquarters or where the main data processing will take place.
Adding specific contractual clauses called Standard Data Protection Clauses (SCC) facilitates data transfer outside of the EEA (European Economic Area) in accordance with the GDPR. Of course, SCCs are approved by the EU commission or supervisory authority. They are similar to the Chinese standard contractual clauses. SCCs must be contractually agreed upon with the data recipient in the third country.
Furthermore, the GDPR offers the option to legitimize data transfers through industry-specific codes of conduct approved by the competent supervisory authority. Provided that they include legally binding and enforceable obligations for the data controller or processor.
Violations
For breaches, companies may faces potential fines under Article 83 of the GDPR. These fines could reach up to EUR 20,000,000 or 4% of its total worldwide annual turnover from the previous financial year, whichever is higher. Such repercussions highlight the serious consequences of GDPR violations for any organization.
Best practices for German and Chinese companies
In summary, Germany’s robust data protection framework, centred around the GDPR and bolstered by domestic laws, demonstrates a persistent dedication to protecting privacy. Compliance with GDPR regulations is essential for businesses, particularly regarding data transfers to non-EU nations, given the substantial penalties for non-compliance. Amidst the intricate landscape of data protection, the Standard Data Protection Model (SDM) serves as a valuable tool, translating legal mandates into actionable steps. Ultimately, Germany’s unwavering commitment to safeguarding privacy sets a benchmark for fostering trust and prioritizing privacy in the digital realm.
