On May 30, 2023, one day before the Measures on the Standard Contract for the Cross-Border Transfer of Personal Information (“Measures”) were scheduled to take effect, the Cyberspace Administration of China (“CAC”) released a first edition of its guidance on how organizations should complete the filing procedure for Standard Contracts (“CAC Guidance”). (See our prior blog posts on the Standard Contract here.)
In addition to underscoring that only companies which are not required to undergo a CAC-administrated security assessment can rely on the Standard Contract as a transfer mechanism, the CAC Guidance provides more details on (1) the submission of documentation when filing the Standard Contract, (2) decision on the submission and any supplementary requests, and (3) supplementing or re-filing the Standard Contract once it is approved an in effect, if necessary.
In the initial phase of filing the Standard Contract, the personal information processing entity (functionally equivalent to a data controller under EU’s General Data Protection Regulation) must provide specific documents, which include the Standard Contract and a “Personal Information Protection Impact Assessment Report” that provides a detailed description of the transfers covered by the Standard Contract. To that end, the CAC’s guidance includes a template Standard Contract and Personal Information Protection Impact Assessment Report. Note that the template Personal Information Protection Impact Assessment Report requires a similar level of detail as the template self-assessment report on cross-border data transfer risks for companies subject to the security assessment. (See our prior blog post on the security assessment application here).
Upon receiving the required documentation, the provincial CAC has 15 working days to accept or reject the submission, and then must inform the personal information processing entity of its decision. If the submission is accepted, it will be assigned a record-filing number. If it is rejected, the provincial CAC will issue a notice of failure and may request supplementary information for further review, which the personal information processing entity must respond to within 10 working days.
The CAC Guidance notes that, once a Standard Contract is approved and in effect, situations may arise that warrant re-evaluation of the impact of transfers on personal information protection, and even an amendment or re-execution of the Standard Contract. Such cases may include, in particular, material changes to the purpose, scope, type, sensitivity, mode, storage location/period, or use of personal information by the Overseas Recipient, as well as changes to the personal information protection laws or policies of the Overseas Recipient’s jurisdiction. The personal information processing entity must warrant to the authenticity of any submitted documents, and will bear legal consequences for the submission of any false materials.
(This blog post was written with contributions from Mingxin Liu.)