Regulation of Transborder Data Flows under ... - Tilburg University

Kuner/Regulation of Transborder Data Flows under Data Protection and Privacy Law 56
Name Provisions Text or translation (excerpts; notes are given in italics)
Additional Protocol
Recommendation
No.R(87)15 of the
Committee of Ministers
to Member States
regulating the use of
personal data in the police
sector
automated personal data files, because of the nature
of those data or those files, except where the
regulations of the other Party provide an equivalent
protection;
b. when the transfer is made from its territory to the
territory of a non-contracting State through the
intermediary of the territory of another Party, in
order to avoid such transfers resulting in
circumvention of the legislation of the Party referred
to at the beginning of this paragraph.
NOTE: Countries that have enacted Convention 108 include the EU
Member States, Albania, Andorra, Azerbaijan, Bosnia and
Herzegovina, Georgia, Liechtenstein, the former Yugoslav Republic of
Macedonia, Moldova, Norway, Serbia, and Switzerland
Article 2 – Transborder flows of personal data to a recipient which
is not subject to the jurisdiction of a Party to the Convention
1. Each Party shall provide for the transfer of personal data to a
recipient that is subject to the jurisdiction of a State or organisation that
is not Party to the Convention only if that State or organisation ensures
an adequate level of protection for the intended data transfer.
2. By way of derogation from paragraph 1 of Article 2 of this Protocol,
each Party may allow for the transfer of personal data:
a. if domestic law provides for it because of:
– specific interests of the data subject, or
– legitimate prevailing interests, especially important public
interests, or
b. if safeguards, which can in particular result from contractual clauses,
are provided by the controller responsible for the transfer and are
found adequate by the competent authorities according to domestic
law.
NOTE: Countries that have enacted the Additional Protocol include
most (but not all) EU Member States, Albania, Andorra, Bosnia and
Herzegovina, Croatia, Liechtenstein, the former Yugoslav Republic of
Macedonia, Monaco, Montenegro, Serbia, and Switzerland
5.4. International communication
Communication of data to foreign authorities should be restricted to
police bodies. It should only be permissible:
a. if there exists a clear legal provision under national or international
law,
b. in the absence of such a provision, if the communication is
necessary for the prevention of a serious and imminent danger or is
necessary for the suppression of a serious criminal offence under
ordinary law, and provided that domestic regulations for the protection
of the person are not prejudiced.