EDPB Recommendations 01/2020 – softening without being too soft?

Right after the final version of the Recommendations 01/2020 was issued, we (including myself) started to believe that now, here we will live the life! 

A reference to inability to rely on “subjective factors such as the likelihood of public authorities’ access to your data” is gone, data exporters may now assess how the laws are applied in practice, and even previous importer’s experience.

In fact, it may appear nothing more but just starting euphoria. Let’s be honest, we were happy because we understood: in the majority of cases the legislation of a third country will end up in the cohort of “problematic legislation” (para 43.3).

Okay, para 43.3 says that “you may decide to proceed with the transfer without being required to implement supplementary measures, if you consider that you have no reason to believe that relevant and problematic legislation will be applied, in practice, to your transferred data and/or importer”. That’s the exit, isn’t it? Let’s find some practice that “problematic legislation” does not apply to our transfer, and no need to think of supplementary measures. Everyone’s happy.

Not really. EDPB provides significant requirement to “sources of information” confirming our conclusions.

Non-exhaustive list of them is contained in Annex 3 (various reports from various credible organisations, warrants from other entities…), they must be “relevant, objective, reliable, verifiable and publicly available or otherwise accessible” (para 46). “Documented practical experience of the importer with relevant prior instances of requests” alone cannot be relied on (para 47). 

The question here is: do you know a third country with “problematic legislation” but at the same time with “relevant, objective, reliable, verifiable and publicly available or otherwise accessible” practice confirming that there is not really a problem for the transferred data?

In any event, it is clear: supplementary measures are here to stay.

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