Legislation – Data (Use and Access) Act 2025

“1A.

A transfer of personal data to a third country or an international organisation by a controller or processor is made subject to appropriate safeguards only—

(a)

in a case in which—

(i)

safeguards are provided in connection with the transfer as described in paragraph 2 or 3 or regulations made under Article 47A(4), and

(ii)

the controller or processor, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfer or that type of transfer (see paragraph 6), or

(b)

in a case in which—

(i)

safeguards are provided in accordance with paragraph 2(a) by an instrument that is intended to be relied on in connection with the transfer or that type of transfer, and

(ii)

each public body that is a party to the instrument, acting reasonably and proportionately, considers that the data protection test is met in relation to the transfers, or types of transfer, intended to be made in reliance on the instrument (see paragraph 6).”

(4)

In paragraph 2—

(a)

in the words before point (a)—

(i)

omit “appropriate”, and

(ii)

for “paragraph 1” substitute “paragraph 1A(a)”,

(b)

in point (a), for “public authorities or bodies” substitute “a public body and another relevant person or persons”,

(c)

in point (b), after “rules” insert “approved”,

(d)

in point (c), for “section 17C of the 2018 Act” substitute “Article 47A(1)”,

(e)

in point (e), for “appropriate safeguards” substitute “safeguards provided by the code”, and

(f)

in point (f), for “appropriate safeguards” substitute “safeguards provided by the mechanism”.

(5)

In paragraph 3, in the words before point (a)—

(a)

omit “appropriate”,

(b)

for “paragraph 1” substitute “paragraph 1A(a)”,

(c)

omit “, in particular,”, and

(d)

in point (b), for “public authorities or bodies” substitute “a public body and another relevant person or persons”.

(6)

At the end insert—

“6.

For the purposes of this Article, the data protection test is met in relation to a transfer, or a type of transfer, of personal data if, after the transfer, the standard of the protection provided for the data subject with regard to that personal data by the safeguards required under paragraph 1A, and (where relevant) by other means, would not be materially lower than the standard of the protection provided for the data subject with regard to the personal data by or under—

(a)

this Regulation,

(b)

Part 2 of the 2018 Act, and

(c)

Parts 5 to 7 of that Act, so far as relevant to processing to which this Regulation applies.

7.

For the purposes of paragraph 1A(a)(ii) and (b)(ii), what is reasonable and proportionate is to be determined by reference to all the circumstances, or likely circumstances, of the transfer or type of transfer, including the nature and volume of the personal data transferred.

8.

In this Article—

(a)

references to the protection provided for the data subject are to that protection taken as a whole;

(b)

“relevant person” means a public body or another person exercising functions of a public nature.”