Transfer in China
If a data controller wishes to share, disclose or otherwise transfer an individual's personal information to a third party (including group companies), the data controller must:
- if the third party is a separate data controller, inform the data subject of the purposes of the sharing, disclosure or transfer of the personal information the types of data shared, the name and contact information of the recipient, and obtain prior separate consent from the data subject;
- perform a personal information impact assessment (PIIA), and take effective measures to protect the data subjects according to the assessment results (e.g. putting in place a data transfer agreement or similar contractual protections) (see Collection & Processing);
- record accurately and keep the information in relation to the sharing, disclosure or transfer of the personal information, including the date, scale, purpose and basic information of the data recipient of the sharing or assigning;
- ensure personal information is only transferred where required for processing purposes; not share or transfer any personal biometric information or other types of particularly sensitive personal information where prohibited under relevant laws or regulations; and
- ensure contractual measures are entered into to require the data processor to comply or assist the data controller in complying with obligations under data protection laws.
Cross-border transfers
Most personal information can be transferred or accessed outside of the PRC providing the following compliance steps are taken:
- the data controller has completed one of the following mechanisms to legitimize overseas data transfer, unless the transfer is exempted from such requirement — for details please see below:
- the organisation has passed a CAC security assessment;
- the organisation has obtained certification from a CAC-accredited agency;
- the organisation has put in place CAC standard contractual clauses (SCCs) with the data recipient and filed the signed SCCs with the local CAC together with a cross-border transfer specific PIIA report; or
- for compliance with laws and regulations or other requirements imposed by the CAC;
- the data controller has adopted necessary measures to ensure the data recipient's data processing activities comply with standards comparable to those set out in the PIPL. In practice this means initial due diligence, sufficient contractual protections and ongoing monitoring etc.;
- notice and separate, explicit consent has been given / obtained ( see above) from the data subject (see Collection & Processing); and
- a PIIA has been conducted (see Collection & Processing).
Exempted Transfers
According to the Regulations on Facilitating and Regulating the Cross–border Data Transfers, the following cross-border data transfers are exempted from having to follow any one of the legitimising mechanisms above ("Exempted Transfers”):
- Collection outside of PRC the personal information being transferred outside of PRC was originally collected and generated outside of PRC and thereafter imported back into PRC, and the processing of such personal information within PRC does not involve any personal information or important data that is collected from or generated in PRC;
- Cross-border HR management: the transfer is necessary for implementing cross-border human resource management in accordance with legally formulated employment policies and procedures or legally executed collective contracts;
- Cross-border contract: the transfer is necessary for concluding or performing a contract between the data subject and the data controller (e.g. those contracts that relate to cross-border shipping, logistics, remittance, payments, bank account opening, flight and hotel booking, visa applications, examination services etc.); or
- Emergency situation: the transfer is necessary for protecting the life, health or property security of any natural person under emergency circumstances.
Exempted Transfers 2 (cross-border HR management) and 3 (cross-border contracts) above rely on a “necessity” test. This means the organisation must prove that the cross-border data transfer is necessary in order for the exemption to apply. However, it remains unclear as to what would constitute a necessary basis for the cross-border transfer of personal information.
After carving out all the Exempted Transfers, the data controller shall determine the applicable mechanisms to legitimise the rest overseas data transfers as follows:
CAC security assessment
According to the Regulations on Facilitating and Regulating the Cross–border Data Transfers, a CAC security assessment is required for data controllers who meet any of the following thresholds:
- an organisation intends to transfer any "important data" overseas;
- a CIIO intends to transfer any personal information overseas;
- a data controller intends to transfer non-sensitive personal information of more than 1,000,000 individuals overseas since 1 January of the year when the calculation is conducted; or
- a data controller intends to transfer sensitive personal information of more than 10,000 individuals overseas since 1 January of the year when the calculation is conducted.
The CAC security assessment involves the organisation completing a self–assessment of its cross-border data transfers, which must then be submitted for approval by both the local and national CAC. It primarily assesses the impact of overseas transfers on national security, public interest, and the legitimate rights and interests of individuals or organisations. If the CAC security assessment is passed, the organisation will be granted with a written approval. Such approval will be valid for 3 years and could be extended for another 3 years upon approval by both the local and national CAC, provided the organisation has made no change to its previously approved cross–border transfers.
For organisations that must follow the CAC security assessment route, a copy of the data must in practice be stored locally in the PRC.
China SCCs
According to the Regulations on Facilitating and Regulating the Cross–border Data Transfers, a China SCCs filing with the CAC is required for data controllers who meet any of the following thresholds:
- a data controller intends to transfer non-sensitive personal information of between 100,000 and 1,000,000 individuals overseas since 1 January of the year when the calculation is conducted; or
- a data controller intends to transfer sensitive personal information of fewer than 10,000 individuals overseas since 1 January of the year when the calculation is conducted.
For PRC data controllers that must follow the China SCCs filing route, they must put in place the China SCCs with the overseas data recipient, and then within 10 working days after the effectiveness of the China SCCs file a copy of the signed SCCs together with the corresponding PIIA with the local CAC.
The Measures for the Standard Contract for the Outbound Transfer of Personal Information and the Guidelines on the Filing of Standard Contracts for the Outbound Transfer of Personal Information (Second Edition) provide clarification on how the SCCs may be implemented by organisations as one of the mechanisms for overseas data transfer under the PIPL, how to prepare the corresponding PIIA by using the standard template formulated by the CAC and the procedures for filing the signed SCCs and the PIIA report.
CAC certification
The CAC certification route applies to organisations who trigger the same thresholds as the China SCCs, but importantly appears to provide a practical "legitimizing" route for overseas entities (without a presence in China) collecting and processing personal information outside of China, who in practice have to date found it difficult to follow the other routes. The "Draft Measures for Certification of Personal Information Protection for Cross-Border Transfer of Personal Information" were published for public consultation on 3 January 2025, and set out proposals as to how the certification scheme will be implemented. It will, once implemented, set up a framework for organisations to certify their overseas data transfer processes and procedures. However, there remains some uncertainty as to how it will be enforced in practice against non-China entities.
Organisations within regulated industry sectors may have to follow other compliance steps prescribed by their industry regulator to transfer or remote access their personal information outside of the PRC.
However, certain personal information (and non–personal information) must still remain in (and cannot be accessed outside of) the PRC. This includes (this is not an exhaustive list):
- certain data under industry–specific regulations (such as in the financial services sector and genetic health data); and
- certain restricted data categories (such as "state secrets", some "important data", geolocation and online mapping data etc.).
Finally, according to the PIPL:
- a publicly–available entity list may be published, listings foreign organisations to whom local PRC organisations may not transfer personal information, where such transfer may harm national security or public interest; data controllers must not provide personal information stored within the PRC to overseas legal or enforcement authorities unless approval is obtained from a designated Chinese authority. It remains unclear whether this extends to, say, requests from overseas industry regulators; and
- the PIPL clarifies that Chinese authorities may provide personal information stored within the PRC to overseas legal or enforcement authorities upon request, if and to the extent that there are international treaties or regulations in place to maintain fairness and for mutual benefit.
Transfer of personal information within the Greater Bay Area
Given the close integration of cities within the Guangdong–Hong Kong–Macao Greater Bay Area (GBA), and that data flows between Hong Kong and other cities within the GBA are becoming increasingly frequent, the CAC and the Innovation, Technology and Industry Bureau of the Government of the Hong Kong Special Administrative Region (ITIB) and Office of the Privacy Commissioner for Personal Data, Hong Kong (PCPD) together formulated the Standard Contract for Cross-boundary Flow of Personal Information Within the Guangdong– Hong Kong–Macao Greater Bay Area (Mainland, Hong Kong) (GBA SCCs).
In addition to complying with other general data protection requirements (e.g. notice, consent and impact assessment, etc.) if the data controller and the data recipient are registered in Guangzhou, Shenzhen, Zhuhai, Foshan, Huizhou, Dongguan, Zhongshan, Jiangmen, Zhaoqing or Hong Kong SAR, they may consider signing the GBA SCCs to legitimize the transfer and file the signed GBA SCCs with the Guangdong CAC and PCPD.
Free Trade Zone rules
The Regulations on Facilitating and Regulating the Cross–border Data Transfers provides that Free Trade Zones (FTZs) have the authority to create their own lists of data, the cross-border transfer of which may require CAC security assessment, China SCCs or CAC certification.
Within 2024, FTZs in Tianjin, Beijing, Fujian and Shanghai each published its own "positive data list" or "negative data list" and also set out rules for handling cross-border transfers of data falling into or outside of the lists. In general, FTZs have relatively large discretion when implementing the rules, which may make case by case negotiations with the FTZs necessary.
