How Can a Lawyer Help With Your Business Transfer Risk Assessment?

Does your business transfer personal data outside of the UK? Transferring data internationally is often necessary in the business world. For instance, if your business engages in global partnerships or engages overseas suppliers to carry out certain outsourced services on your behalf. However, these transfers must comply with strict UK General Data Protection Regulation (UK GDPR) rules. To ensure compliance, your business must conduct a Transfer Risk Assessment (TRA) when transferring personal data to certain countries outside the UK. Given these assessments’ complexity and risks, having sound legal advice can be invaluable. This article will explore the purpose of Transfer Risk Assessment, the challenges you may face when completing one, and how a data protection lawyer can help you confidently navigate this process. 

What is the UK GDPR?

The UK GDPR is the critical legal framework that governs personal data processing within the United Kingdom. Your business must comply with these rules and ensure that you handle personal data securely and compliantly, per the principles set by this law. 

Failure to do so can lead to significant penalties, including fines of up to £17.5 million or 4% of global annual turnover, whichever is higher. As such, you must prioritise compliance. 

What is a Transfer Risk Assessment (TRA)?

A Transfer Risk Assessment is required when your organisation intends to transfer personal data outside the UK in specific situations, such as when:

• you are using the ICO’s International Data Transfer Agreement;
• you rely on the European Commission’s Standard Contractual Clauses with a UK Addendum document alongside it; or
• you are using Binding Corporate Rules.

These are all methods known as appropriate safeguards, for example, tools for transferring personal data to certain countries internationally. 

However, you do not need to carry out a Transfer Risk Assessment if the data transfer is to a country covered by the UK’s adequacy regulations or if specific exceptions in the UK GDPR apply. 

The main goal of conducting a Transfer Risk Assessment and implementing the appropriate safeguards is to ensure that individuals’ data remains protected when transferred to countries outside the UK. 

The ICO offers two approaches for conducting this assessment.

ICO’s Approach

This method compares the risk to individuals if their data stays within the UK versus transferred abroad. The assessment looks at privacy and human rights risks, requiring you to consider whether the international transfer would significantly endanger the privacy and rights of the individuals involved. 

European Approach

In line with the European guidelines, this approach requires you to assess the legal and practical protections in the destination country compared to those in the UK. This method evaluates the adequacy of safeguards in the destination country, particularly concerning protection against third-party access, such as by government agencies.

You may choose either approach depending on your specific circumstances and the nature of the data transfers. Regardless of the method, it is vital that you carefully document your process and assessment in detail. 

How Can a Lawyer Support Your Transfer Risk Assessment Process?

Conducting a Transfer Risk Assessment can be challenging and something many businesses struggle with. It is generally not an easy process and a highly complex aspect of compliance. Further, this is a fast-developing area of law, with new guidance often introduced. From the outset, a lawyer can guide you on whether you need to carry out this assessment and what it needs to review. 

Deciding on the appropriate assessment method, for example, whether to follow the ICO’s guidelines or the European approach, requires careful consideration, especially for businesses with operations and data processing in both the UK and EU. A lawyer can guide you through this decision-making process. 

Conducting a TRA often needs substantial resources and in-depth investigations, particularly for high-risk data transfers. The complexity increases when working with overseas suppliers, as coordinating these assessments across multiple jurisdictions can be daunting. 

An experienced data protection lawyer can manage the project, communication, and collaboration with these suppliers, alleviating much of your pressure. However, your business will ultimately need to make critical decisions regarding the assessment outcome. 

Transfer Risk Assessment Examples

When your assessment involves analysing the legal environment in third countries, the task becomes even more challenging. You may need to understand local laws, such as those governing surveillance and data access by public authorities, and the legal protections available for individuals. This often requires specialised local legal knowledge, which your business may not have. 

A lawyer can help by obtaining the necessary local law advice, streamlining the process, and preventing delays that could hinder your projects. Ultimately, a Transfer Risk Assessment is often needed so a business can decide whether it can proceed with an international data transfer. 

Given the challenges mentioned above and how complicated this assessment can be, a lawyer can provide invaluable assistance throughout this complex process.

Failing to conduct a Transfer Risk Assessment correctly can have serious repercussions for your business. For example, if you do not conduct a TRA correctly, you could breach the UK GDPR. Such a breach could lead to significant regulatory action, including heavy fines and other enforcement measures. As such, you should seek legal advice if you need clarification on the process and how to conduct it correctly. 

GDPR Essentials Factsheet

This factsheet sets out how your business can become GDPR compliant.

Download Now

Key Takeaways

Successfully conducting a Transfer Risk Assessment is a key step in ensuring your business complies with the UK GDPR when transferring personal data to countries outside the UK. This process involves navigating complex legal frameworks, evaluating privacy, and implementing adequate safeguards to protect individuals’ data. Given the challenges involved, from understanding foreign laws to coordinating with overseas suppliers, seeking specialist legal advice is crucial to complete the process correctly. 

If you need support with a Transfer Risk Assessment, our experienced data, privacy, and IT lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to our lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

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