Data Protection in Botswana

Transfer in Botswana

The transfer of personal data from Botswana to another country is prohibited save for transborder transfers to countries that have been designated by the Minister through an Order published in the Government Gazette.

Transborder transfers of personal data require prior authorisation to be granted by the Commissioner so as to assess and ensure that adequate levels of protection are provided by the country receiving the personal data. The assessment is in light of all the circumstances surrounding the data transfer operation and particular consideration is given to:

  • the nature of the data;
  • the purpose and duration of the proposed processing operation;
  • the country of origin and the country of final destination;
  • the rule of law, both general and sectoral, in force in the third country in question; and
  • the professional rules and security safeguards which are complied with in that country.

Notwithstanding the above, transborder transfers to countries which do not offer an adequate level of protection are allowed where the data subject consents to the proposed transfer or, where the transfer is:

  • necessary for the performance of a contract between the data subject and the data controller, or the implementation of pre contractual measures taken in response to the data subject’s request;
  • necessary for the performance or conclusion of a contract in the interests of the data subject between the data controller and a third party;
  • necessary or legally required for the public interest, or for the establishment, exercise or defence of a legal claim;
  • necessary to protect the vital interests of the data subject; or
  • made from a register that is intended to provide the public with information and is open to public inspection.

Regardless of the above mentioned restrictions, transborder flow of personal data to a country without adequate levels of protection may be authorised where consent is obtained from the data subject and the data controller provides adequate safeguards which may be by means of appropriate contractual provisions, with respect to the protection of the privacy and fundamental rights and freedoms of individuals.

Currently, personal data may be freely transferred to the following countries:

  1. Austria
  2. Belgium
  3. Bulgaria
  4. Croatia
  5. Cyprus
  6. Czech Republic
  7. Denmark
  8. Estonia
  9. Finland
  10. France
  11. Germany
  12. Greece
  13. Hungary
  14. Ireland
  15. Italy
  16. Latvia
  17. Lithuania
  18. Luxembourg
  19. Malta
  20. Netherlands
  21. Poland
  22. Portugal
  23. Romania
  24. Slovakia
  25. Spain
  26. Slovenia
  27. Sweden
  28. Norway
  29. Liechtenstein
  30. Iceland
  31. The United Kingdom
  32. New Zealand
  33. Israel
  34. Japan
  35. Isle of Man
  36. Guernsey
  37. Switzerland
  38. Uruguay
  39. Republic of Korea
  40. Andorra
  41. Argentina
  42. Foroe Islands
  43. Jersey
  44. South Africa
  45. Kenya

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