Essential Updates On Cross-Border Knowledge Switch In China – Knowledge Safety – China

Below the PRC Private Info Safety Regulation
(“PIPL“) which turned efficient on 1
November 2021, a switch of non-public data outdoors of China
requires a number of circumstances to be met.

Private data can solely be transferred abroad upon
acquiring separate consent from the info topics, conducting a
private data safety affect evaluation
(“PIA“) and complying with one of many
circumstances set out under, particularly

  1. a knowledge switch settlement adopting the PRC commonplace contractual
    clauses (“SCCs”);
  2. private data safety certification from a chosen
    certification agent (“Certification“);
  3. passing the safety evaluation by the Our on-line world
    Administration of China (“CAC Safety

After months of ready, in the previous few weeks, there have been
vital developments in respect of all of the circumstances

  1. Draft rules had been lastly issued in respect of the SCCs
    for public session.
  2. Detailed specs on the Certification had been issued.
  3. Up to date measures on CAC Safety Evaluation have additionally been

On 30 June 2022, the Our on-line world Administration of China
(“CAC”) printed the Provisions on
Customary Contract for Cross-border Switch of Private Info
(Draft for Remark) for public session. The session
interval will finish on 29 July 2022.

What do the SCCs cowl

The SCCs cowl the next:

  1. the essential data of each the info processer and abroad
    recipient, together with however not restricted to call, deal with, contact identify
    and make contact with data;
  2. the aim, scope, kind, sensitivity, amount, provision
    method, retention interval, storage location of the non-public
    data to be transferred;
  3. the tasks and obligations of the info processer and
    abroad recipient with respect to the safety of non-public
    data, in addition to the technical and administration measures to be
    taken to stop potential safety dangers arising from the
    cross-border switch of non-public data;
  4. the affect of native insurance policies and rules on the safety
    of non-public data the place the abroad recipient is situated might
    have on the compliance with the SCCs;
  5. the rights of knowledge topics, and the methods and technique of
    safeguarding the rights of knowledge topics; and
  6. treatments, termination of contract, liabilities for breach of
    contract, dispute decision, and many others.

When the SCCs could be adopted

The SCCs can solely be adopted if the PRC information processor:

  1. will not be a important data infrastructure operator
    (“CIIO“) (as outlined beneath the PRC
    Cybersecurity Regulation);
  2. doesn’t course of private data of 1,000,000 people
    or extra;
  3. doesn’t present private data of 100,000 people or
    extra in combination to abroad recipients since 1 January of the
    earlier 12 months; and
  4. doesn’t present delicate private data of 10,000
    people or extra in combination to abroad recipients since 1
    January of the earlier 12 months.

If the info processor doesn’t meet the requirement for adopting
the SCCs, it shall take into account various safeguards, particularly
Certification or CAC Safety Evaluation.

PIA required for cross-border switch

As a pre-requisite for adopting the SCCs, a PIA have to be
performed earlier than cross-border switch of non-public data
beneath a knowledge switch settlement. That is according to PIPL. A
PIA shall give attention to issues resembling:

  1. the legality, legitimacy and necessity of the aim, scope
    and method of processing private data by the info processor
    and abroad recipient;
  2. the amount, scope, kind and sensitivity of the non-public
    data to be transferred to the abroad recipient, and the
    related danger of such switch;
  3. the power of the abroad recipient to take safety measures
    to meet the safety obligations;
  4. the danger of any data leakage, destruction,
    falsification, misuse after such switch, in addition to the accessible
    remedial measures for the info topics within the abroad
    jurisdictions; and
  5. the affect of native insurance policies and rules on the safety
    of non-public data within the abroad jurisdictions.

It’s famous that the Standardization Administration of China
issued the Steerage for Private Info Safety Influence
Evaluation (efficient on 1 June 2021) which might be used as a
reference for implementing a PIA by information processors.

Submitting of knowledge switch settlement and PIA

An information processor shall file a duplicate of the info switch
settlement adopting the SCCs with the provincial our on-line world
administration the place it’s situated inside 10 working days from the
efficient date of the settlement.

Each the info switch settlement and the related PIA report
shall be filed. The related private data switch could be
carried out after the info switch settlement turns into

Renewal and re-filing of knowledge switch agreements

An information switch settlement shall be renewed and re-filed when any
of the core phrases and circumstances stipulated within the information switch
settlement adjustments.

A renewal and re-filing is required when there are:

  1. adjustments within the function, scope, kind, sensitivity, amount,
    provision method, retention interval, storage location of the
    private data transferred and the aim and method of
    processing by the abroad recipient, or extension of the retention
    interval of the non-public data transferred;
  2. adjustments within the private data safety insurance policies and
    rules of the nation or area the place the abroad recipient
    is situated which can have an effect on the rights and pursuits of the info
    topics; or
  3. some other circumstances which may have an effect on the rights and
    pursuits of the info topics.

Authorized penalties of non-compliance

If any of the next has not been complied with:

  1. non-filing of the info switch settlement or submission of
    false supplies for submitting;
  2. failure to carry out the obligations stipulated within the information
    switch settlement infringing the rights and pursuits of knowledge
    topics; or
  3. some other occasion adversely affecting the rights and pursuits of
    information topics,the our on-line world administration at or above the
    provincial stage might order the info processor to rectify the
    non-compliance inside a prescribed time frame, failing which
    the info processor could also be ordered to stop transferring private
    data abroad and related penalties might be imposed
    based on relevant legal guidelines.

The place the our on-line world administration finds that any exercise
associated to cross-border switch of non-public data not
meets the safety administration necessities beneath the relevant
legal guidelines and rules together with however not restricted to PIPL, it might
notify the info processor in writing to terminate the cross-border
switch of non-public data, and the info processor shall
instantly stop transferring private data outdoors of
China upon receipt of the discover.

Any group or particular person may additionally file a criticism or
report any non-compliance to the our on-line world administration.

Our observations

Any information processor in PRC together with Chinese language subsidiaries of
multinational firms shall take into account the conditions the place
cross-border switch of non-public data might happen and undertake
the SCCs as applicable.

For multinational firms which have adopted the EU commonplace
contractual clauses beneath the Basic Knowledge Safety Regulation
(“GDPR“), they shall take into account getting ready
an addendum adopting the PRC SCCs to cowl switch of non-public
data from China. This additionally applies to intra-group switch


On 24 June 2022, the Nationwide Info Safety
Standardisation Technical Committee
(“Committee“) promulgated the
Specification for Certification of Cross-border Private
Info Switch (“Certification
“). The Certification Specification goals
to supply the requirements and necessities to assist designated
certification brokers of their certification course of and information information
processors of their private data cross-border switch

When Certification could be adopted

The Certification Specification units out two eventualities beneath
which Certification could be adopted:

  1. intra-group information switch, i.e. cross-border switch of
    private data inside a multinational firm or between
    subsidiaries of the identical financial or enterprise entity or between
    affiliated firms; or
  2. cross-border switch of non-public data by abroad
    processors that are topic to the extra-territorial scope of PIPL
    (per Article 3 of PIPL), i.e. abroad entities offering merchandise
    or companies to pure individuals situated inside PRC; or analysing or
    assessing the behaviour of pure individuals situated inside PRC. A
    particular company or designated consultant needs to be arrange inside
    PRC by the abroad processor.

The intra-group information switch state of affairs is modelled on the
Binding Company Guidelines mechanism beneath GDPR, offering a
compliance choice for intra-group switch of non-public data.
In these conditions, the processing actions are performed
between events with a steady relationship and a constant
administration construction.

Designated certification brokers

The Certification Specification doesn’t specify who the
designated certification brokers are.

Contemplating that organisations such because the China Cybersecurity
Overview Know-how and Certification Centre and the China
Electronics Standardisation Institute have supplied technical
assist for the event of the Certification Specification, it
is feasible that any of them could be the designated certification

Main necessities for Certification

As a way to efficiently get hold of a certification, the
Certification Specification introduces plenty of necessities as

  1. A binding settlement shall be signed between the info processor
    and related abroad recipient with a purpose to defend information
    topics’ respectable rights and pursuits.
  2. Every celebration shall appoint an individual to be answerable for
    private data safety, i.e., the Knowledge Safety Officer
    (“DPO“). A DPO shall possess particular
    data and administration expertise by way of information safety and
    shall be a member of the decision-making mechanism.
  3. Every celebration shall set up a private data safety
    division answerable for private data safety, and
    formulating and performing plans for cross-border switch,
    supervising processing in accordance with cross-border switch
    guidelines, and many others.
  4. The events shall adjust to unified guidelines concerning cross
    border processing of non-public data.
  5. A PIA shall be carried out. The events shall consider whether or not
    such switch is predicated on the rules of legitimacy and
    necessity and whether or not the adopted protecting measures are
    proportionate to the extent of dangers, and many others.

Our observations

The Certification Specification describes who’s eligible to
apply for certification beneath the certification mechanism, as effectively
as whether or not and the way processors are required to fulfil sure
obligations in relation to cross-border switch of non-public
data. Nevertheless, the Certification Specification is a
advisable industrial observe issued by the Committee however not a
necessary regulation by CAC. Due to this fact, the Certification
Specification’s authorized impact will not be clear. That mentioned, PRC information
legislation practitioners usually take the view {that a} certification
based on the Certification Specification will likely be an efficient
technique to fulfill the certification requirement beneath Article 38 of
PIPL for cross-border switch.

The Certification Specification alone will not be adequate and the
implementation of the certification mechanism continues to be topic to
additional clarification, together with what entities will likely be designated
to carry out certification; the certification’s validity interval;
the circumstances the place a re-certification is required; and whether or not
there’s an attraction mechanism for evaluate and supervision of
choices made by the designated certification brokers.

  1. Up to date Measures on CAC Safety

On 7 June 2022, CAC printed the Measures for Safety
Evaluation of Cross-border Switch of Knowledge
(“Measures“, which can turn into efficient
on 1 September 2022) with the purpose to implement CAC Safety
Evaluation stipulated beneath PIPL, the Knowledge Safety Regulation and the
Cybersecurity Regulation masking each private data and vital
information. The draft model of the Measures was printed on 29 October
2021 and we now have printed an in depth article on the draft Measures
– please discuss with our earlier article Proposed safety evaluation mechanism
for transferring information outdoors of China

Evaluating with the draft Measures issued in October 2021, the
ultimate model of the Measures has launched the next key

Evaluating with the draft Measures issued in October 2021, the
ultimate model of the Measures has launched the next key

  1. The ultimate Measures have re-categorised the circumstances for
    which CAC Safety Evaluation is required. Below the ultimate
    Measures, a knowledge processor should file a safety evaluation for
    cross-border information switch with CAC by means of the provincial
    our on-line world administration the place the info processer is situated
  1. vital information will likely be transferred;
  2. private data will likely be transferred by CIIOs or information
    processors processing private data of over 1,000,000
    people in China;
  3. private data will likely be transferred by information processors who
    have both accumulatively transferred (i) private data of
    greater than 100,000 people; or (ii) delicate private
    data of greater than 10,000 people outdoors of China since
    1 January of the earlier 12 months; or
  4. different conditions set out by CAC that require a submitting beneath the
    safety evaluation regime.

These thresholds are in step with the draft SCC provisions
mentioned in Part A.

b. The ultimate Measures have clarified the procedural necessities
and timeline for the provincial our on-line world administration to
conduct the safety evaluation evaluate. The provincial our on-line world
administration shall affirm whether or not the applying paperwork are
so as inside 5 working days upon receiving the submitting
submission. Upon affirmation that the paperwork are so as, the
provincial our on-line world administration shall submit the applying
to CAC and CAC will evaluate the submission based on the
following timeline: (i) 7 working days for the pre-acceptance
evaluate upon receiving the submission; and (ii) 45 working days upon
acceptance of the submission. Notably, the ultimate Measures have
eliminated the time limitation of 60 working days for finishing
evaluation of extra difficult instances, and solely stipulate that the
prolonged evaluation interval shall be notified to the info processor.
If the info processor doesn’t agree with the evaluation choice
of CAC, it’s entitled to use for a reassessment inside 15
working days upon receipt of the evaluation choice, and the
outcomes of the reassessment will likely be ultimate.

c. The ultimate Measures will take impact on 1 September 2022, and
there will likely be a transition interval of 6 months by which full
compliance of the Measures is anticipated.

Our observations

The Measures present a transition interval of 6 months (i.e. by 28
February 2023) for the info processors to deliver their cross-border
information switch actions in step with the necessities of the
Measures. On condition that the safety evaluation course of takes time, it
is advisable that every one information processors who’re topic to CAC
Safety Evaluation shall make vital preparations as early as
potential to keep away from any disruption to their cross-border information

Notably, the CAC safety evaluation approval for cross-border
switch is simply legitimate for 2 years, which implies that information
processors might want to undergo the identical train each two
years. Functions shall even be re-submitted if there’s any
change to the scope and method of cross-border switch, change to
the info regime of the jurisdiction the place the abroad recipient is
situated, or change of management of the events.

It might be fascinating to see whether or not information localisation in
China will turn into a precedence agenda merchandise for the boards of
multinational firms working in China as a response to the brand new

The content material of this text is meant to supply a common
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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