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Exporting Personal Data Outside DIFC

In accordance with Article 26 of the DP Law 2020, a transfer of Personal Data to a recipient located in a jurisdiction outside the DIFC may take place only if that jurisdiction is deemed to have an adequate level of protection for that Personal Data. The Commissioner of Data Protection applies adequacy standards based largely on prevailing international best practices and extensive practical application and methodology development.

There are exceptions, however, which are set out in Article 27 of the DP Law 2020, including transfers supported by additional contractual clauses, certain internal data protection policies and processes, or specific derogations in limited circumstances.  

Article 28 covers data sharing with goverment authorities, including law enforcement agencies.  Obligations regarding 1)  written assurances for handling personal data in line with the DIFC DP Law 2020 or 2) a self-assessment of risk, necessity and proportionality around such sharing are set out in Article 28(1) and Article 28(2), respectively. 

Further information on these important articles in DP Law 2020 are available below.  For starters, please conduct the Export Assessment to find out where your company stands on compliance with international data transfers requirements. 

Data Export Assessment
 

MODEL CLAUSES FOR DATA EXPORT TO IMPORTERS IN NON-ADEQUATE JURISDICTIONS

The DIFC Standard Contractual Clauses (DIFC SCCs) at the "VIEW FILE" link below are based on a combination of those used in Europe and the UK, for ease of use across as many jurisdictions as possible. They provide additional safeguards in accordance with DP Law 2020, Article 27(2)(c) and as prescribed in Regulation 5 of the DIFC DP Regulations 2020. 

 

Please note: these are not the standard clauses referred to in Article 24(8) of the DP Law 2020. The Commissioner’s Office has not yet published such clauses, but may do so in the future. Please ensure the content of any such written agreement contains clauses sufficient to discharge the obligations set out in Articles 24(5)(b)(i) and 24(5)(b)(x).  Further information on these requirements is available here .

VIEW FILE: DIFC SCCs
 
DIFC SCCs / EU Modules / UK IDTA Comparison

The DIFC SCCs were compared and synthesized from the most commonly used data sharing safeguard clauses, the EU Model Clauses and the UK IDTA.  

A comparison table of these clauses and what resulted ultimately in the DIFC SCCs is available for review. Please share any feedback or questions with [email protected]

Comparison Table
 

 

ARTICLE 28: DATA SHARING WITH PUBLIC AUTHORITIES OR LAW ENFORCEMENT

While government authorities in Third Countries have powers prescribed to them by various applicable local laws, Article 28 sets out safeguards and obligations for sharing Personal Data with them. Where a controller or processor receives a request from any public authority, whether in the UAE or outside the UAE, for the disclosure and transfer of Personal Data, it must undertake steps to ensure that the shared personal data is treated with the same care and provision for the exercise of rights, including access to judicial redress, if it appears that a the importing public authority has unlawfully processed it.  

 

General guidance on A28 exists in the Data Export and Sharing Handbook, but specific guidance and FAQs are available at this link

 

This sample Article 28 MOU template sufficiently addresses one method of obtaining written assurances as stated in Article 28(1) and s available for download.  Please consider using it to respond to government data sharing requests in your business or organisation.   

 

You may also use the A28 Assessment Tool to help you figure out what to do when sharing data with a public authority or law enforcement.  

Article 28 Assessment

 

 

ETHICAL DATA MANAGEMENT RISK INDEX AND EDMRI+

In order to properly apply safeguards for international transfers and to generally comply with the DP Law 2020, or most data protection laws globally, a Controller or Processor should undertake risk assessments, which may be based on the DP law in a jurisdiction, but ideally also on the compliance "environment" to which you are sending Personal Data, so that it is treated with as much care and safety as at “home”. 

To this end, the Ethical Data Management Risk Index (EDMRI) and methodology was created by the DIFC Commissioner’s Office to assess the compliance risk of an importing business or entity in a jurisdiction complying or not with contractual, legal, technical, and organisational obligations when receiving Personal Data from a DIFC entity.    

The EDMRI+ Due Diligence Risk Assessment, (EDMRI+), the companion due diligence tool, allows you to document your own risk and equivalence assessment of the compliance preparedness of the importing entity you are about to share data with.  The resulting EDMRI+ guidance gives you an idea of the gaps in your international transfer plan per importer. This is important because even with adequacy or other transfer control mechanisms in place for your data sharing activities, you should seek to understand whether the businesses your company engages with are fostering privacy as well.   Please refer to the EDMRI Guidance for clarification

 

The detailed methodology for the EDMRI is set out in Appendix 2 of the Data Export and Sharing Handbook.  The EDMRI was developed in December 2020, and is the intellectual property of the Dubai International Financial Centre Authority.  EDMRI+ was developed in 2022 as a result of a consultation process and feedback from local DIFC entities as well as international privacy and security experts.  

PENDING EDMRI UPDATES

The EDMRI is updated as needed with the aim to update quarterly, as privacy laws are being enacted and policies, implementations of regimes, etc., happen regularly. The following update will be updated by end of Q4 2022 to include updates such as:

-- Enactment of the first data protection law in Indonesia, the Personal Data Protection Act, and review of index rating.

-- Additional country reviews and analysis for index ratings

 

EDMRI Guidance and Index
Conduct EDMRI+ Due Diligence
EDMRI FAQs

 

 

 

DIFC ADEQUACY DECISION PROCESS & 
LIST OF ADEQUATE DATA PROTECTION REGIMES

The Commissioner’s assessment criteria for determining adequacy recognition of a Third Country or International Organisation is provided in the following documents:

 

EU COUNTRIES
  • Austria
  • Belgium
  • Bulgaria
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Greece
  • Germany
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Romania
  • Slovakia
  • Slovenia
  • Spain
  • Sweden
European Economic Area Member (EEA)Countries
  • Iceland
  • Liechtenstein
  • Norway
Other Countries and Jurisdictions
Sharing Personal DATA IN RESPONSE TO US SECURITIES & EXCHANGE COMMISSIOn Information Requests

On June 27, 2021, the DIFC Data Protection Commissioner’s Office issued a letter analyzing the impact of DIFC data protection law on transfers to the United States Securities and Exchange Commission (SEC) of Personal Data from DIFC-based firms or branches that are registered, required to be registered, or otherwise regulated by the SEC (“DIFC-based SEC firms”), such as DFSA regulated entities. While this is not an adequacy decision, it permits such transfers and may be accessed by such DIFC-based SEC firms as needed in order to lawfully share Personal Data in this context. 

 

NOTE REGARDING US-EU TRANS-ATLATIC FRAMEWORK

On July 16, 2020, the Court of Justice of the European Union in its ruling in the Schrems II case invalidated Privacy Shield as a legitimate transfer mechanism between the US and the EU / EEA. DIFC had not permitted Privacy Shield as a mechanism for international transfers as it applied to transfers and onward transfers from the EU to the US only. In any case, it had a significant impact on data transfers globally, as for a long period of time, technically, transfers to the US from Europe were "illegal", and potentially onward transfers from DIFC or other non-EU jurisdictions would have been "illegal" as well. 

 

On March 25, 2022, the US Government and the European Commission announced an agreement in principle to a new framework for transfers from the EU to the US, called the Trans-Atlantic Data Privacy Framework (the "Framework").  On October 7, 2022, President Biden issued an Executive Order regarding implementation of the Framework.  Please review the White House joint statement with the European Commission setting out the primary elements and requirements of the framework, and the fact sheet issued by the White House setting out the key elements of the Framework, including updates to the way the US Intelligence Community gathers and processes personal data, and an independent and binding review and redress mechanism. 

 

DIFC DP Commissioner's Office anticipates that, as above, the Framework will not apply to transfers directly from the DIFC as it is an agreement between the EU and the US.  However, if your entity is part of a multi-national or group business that engages in transfers / onward transfers from the EU, it may come into play.  In such cases, please consider reviewing the transfers made by your entity once Personal Data leaves the DIFC for processing in the EU, to ensure the transfers remain compliant with Article 27 of the DIFC DP Law 2020. For further assistance, please review the Commissioner’s comprehensive guidance on DP Law 2020 as well as the Data Export assessment tool.  Please note that any such guidance is for informational purposes only and should not be construed as legal advice provided by the Commissioner’s Office.

 


APPROVED BINDING CORPORATE RULES  

Company Name Registered Number Binding Corporate Rules (website) DFSA Status
Cisco Capital (Dubai) Limited 779 Pending Regulated
Citigroup Global Markets Limited 221 Pending Regulated
EY MENA Services Ltd 3022 Pending Non-regulated
Hyatt International – South West Asia Limited 501 Pending Non-regulated
Novelis MEA Ltd 1278 Pending Non-regulated
RGA Reinsurance Company Middle East Limited 221 Binding Corporate Rules (rgare.com) Regulated


NON-LEGISLATIVE CONSULTATION MATERIALS - NOV 2022  

Enabling Technology and Data Sharing through Multi-lateral "Adequacy"

 

Non-Legislative Consultation Paper: Enabling Technology and Multilateral Adequacy Platform for Data Sharing

 

Response link

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