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

Kuner/Regulation of Transborder Data Flows under Data Protection and Privacy Law 60
OECD Guidelines on the
Protection of Privacy and
Transborder Flows of
Personal Data (1980)
penalties;
(b) the receiving authority in the third State or receiving
international body is responsible for the prevention,
investigation, detection or prosecution of criminal offences or
the execution of criminal penalties;
(c) the Member State from which the data were obtained has
given its consent to transfer in compliance with its national law;
and
(d) the third State or international body concerned ensures an
adequate level of protection for the intended data processing.
2. Transfer without prior consent in accordance with paragraph
1(c) shall be permitted only if transfer of the data is essential
for the prevention of an immediate and serious threat to public
security of a Member State or a third State or to essential
interests of a Member State and the prior consent cannot be
obtained in good time. The authority responsible for giving
consent shall be informed without delay.
3. By way of derogation from paragraph 1(d), personal data
may be transferred if:
(a) the national law of the Member State transferring the data
so provides because of:
(i) legitimate specific interests of the data subject; or
(ii) legitimate prevailing interests, especially important public
interests; or
(b) the third State or receiving international body provides
safeguards which are deemed adequate by the Member State
concerned according to its national law.
4. The adequacy of the level of protection referred to in
paragraph 1(d) shall be assessed in the light of all the
circumstances surrounding a data transfer operation or a set of
data transfer operations. Particular consideration shall be given
to the nature of the data, the purpose and duration of the
proposed processing operation or operations, the State of
origin and the State or international body of final destination
of the data, the rules of law, both general and sectoral, in force
in the third State or international body in question and the
professional rules and security measures which apply.
15. Member countries should take into consideration the implications
for other Member countries of domestic processing and re-export of
personal data.
16. Member countries should take all reasonable and appropriate steps
to ensure that transborder flows of personal data, including transit
through a Member country, are uninterrupted and secure.
17. A Member country should refrain from restricting transborder
flows of personal data between itself and another Member country
except where the latter does not yet substantially observe these
Guidelines or where the re-export of such data would circumvent its
domestic privacy legislation. A Member country may also impose
restrictions in respect of certain categories of personal data for which
its domestic privacy legislation includes specific regulations in view of
the nature of those data and for which the other Member country
provides no equivalent protection.
18. Member countries should avoid developing laws, policies and
practices in the name of the protection of privacy and individual
liberties, which would create obstacles to transborder flows of personal
data that would exceed requirements for such protection.