Section 74AB: The data protection test, Data Protection Act 2018

For the purposes of section 74AA, the data protection test is met in relation to transfers to a third country or international organisation if the standard of the protection provided for data subjects with regard to law enforcement processing of personal data in the country or by the organisation is not materially lower than the standard of the protection provided for data subjects by or under—

this Part, and

Parts 5 to 7, so far as relevant to law enforcement processing.

In considering whether the data protection test is met in relation to transfers of personal data to a third country or international organisation, the Secretary of State must consider, among other things—

respect for the rule of law and for human rights in the country or by the organisation,

the existence, and powers, of an authority responsible for enforcing the protection of data subjects with regard to the processing of personal data in the country or by the organisation,

arrangements for judicial or non-judicial redress for data subjects in connection with such processing,

rules about the transfer of personal data from the country or by the organisation to other countries or international organisations,

relevant international obligations of the country or organisation, and

the constitution, traditions and culture of the country or organisation.

In subsections (1) and (2)—

the references to the protection provided for data subjects are to that protection taken as a whole,

the references to law enforcement processing are to processing by a competent authority for any of the law enforcement purposes or equivalent types of processing in the third country or by the international organisation (as appropriate), and

the references to processing of personal data in the third country or by the international organisation are references only to the processing of personal data transferred to the country or organisation by means of processing to which this Act applies as described in section 207(2).

When the data protection test is applied only to certain transfers to a third country or international organisation that are specified or described, or to be specified or described, in regulations (in accordance with section 74AA(4)(b))—

the references in subsections (1) to (3) to personal data are to be read as references only to personal data likely to be the subject of such transfers, and

the reference in subsection (2)(d) to transfer to other countries or international organisations is to be read as including transfer within the third country or international organisation.

Section 74AB: The data protection test

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