The European Data Protection Board (“EDPB”) adopted its highly anticipated guidelines on the territorial scope of the General Data Protection Regulation (“GDPR”) (the “Guidelines”), which are currently open for public consultation until January 18, 2019.
The extraterritorial application of the GDPR to entities located in non-EU countries marks a significant shift in the legal framework compared to the GDPR’s predecessor (Directive 95/46/EC).
The GDPR’s extraterritorial scope is based on two main criteria described in its Article 3:
- the “establishment” criterion, according to which the GDPR applies where processing of personal data is undertaken by a person in the context of the activities of an establishment in the European Union regardless of whether the processing takes place in the European Union or not, and
- the “targeting” criterion, according to which the GDPR applies where processing activities conducted by a person established outside the European Union relate to the offering of goods or services or the monitoring of behavior of data subjects in the European Union.
As a result of these two criteria, businesses which did not previously need to consider the applicability of EU data protection law to their processing activities may now be caught within the GDPR’s territorial scope. The Guidelines are intended to bring clarity to non-EU businesses doing business with the EU, either directly or through “establishments”, which must undertake a careful assessment of their data processing activities in order to determine whether the GDPR applies. The full text of the Guidelines can be accessed here and their key features are summarized below.
Continue Reading EDPB Publishes Draft Guidelines on the Territorial Scope of the GDPR