The GDPR is the most stringent data protection regime in the world. Breach of the core processing principles may attract a fine of up to EUR 20 million or 4% of global annual turnover. Meta was fined EUR 1.2 billion for unlawful EU-US data transfers — the largest penalty in the history of the GDPR.

Three mechanisms for cross-border transfer

Mechanism one: adequacy decision

Where the European Commission has determined that the level of data protection in a third country is essentially equivalent to that in the Union, data may flow freely.

Adequacy recognisedCondition
United States (participants in the DPF)The undertaking must be certified under the EU-US Data Privacy Framework
Republic of KoreaAdequacy confirmed as continuing in July 2026
Uruguay—
European Patent Organisation—

Mechanism two: standard contractual clauses

In June 2021 the European Commission adopted new SCC templates in four modules:

ModuleScenario
Module 1Controller to controller (data transfer)
Module 2Controller to processor, including the Article 28 processing obligations
Module 3Processor to processor (sub-processing)
Module 4Processor to controller

Key requirement: before the SCCs are adopted, a transfer impact assessment (TIA) must be carried out, assessing whether the law of the destination country may impede the processor’s performance of its SCC obligations. Where an impediment is found, supplementary measures are required.

Mechanism three: binding corporate rules

A mechanism for intra-group transfers within a multinational group, requiring approval by the supervisory authority of the relevant Member State.

The eight data subject rights

RightArticleContent
Right to be informedArticles 12 and 14To be told the purposes, legal basis and retention period
Right of accessArticle 15A copy of the personal data
Right to rectificationArticle 16Correction of inaccurate data
Right to erasureArticle 17Deletion, the “right to be forgotten”
Right to restrictionArticle 18Restriction of processing while a dispute is resolved
Right to data portabilityArticle 20Receipt and transfer in a machine-readable format
Right to objectArticle 21Objection to processing, including direct marketing
Rights on automated decisionsArticle 22Not to be subject to decisions based solely on automated processing

The data protection impact assessment

Triggers (Article 35)

Where processing, particularly with new technology, is likely to result in a high risk to the rights and freedoms of individuals, a DPIA must be carried out before processing begins:

TriggerDescription
Large-scale systematic monitoringSuch as AI surveillance systems
Large-scale processing of sensitive dataSuch as biometric or health data
Large-scale processing of children’s data—
Automated decision-making, including profilingProducing legal or similarly significant effects

Content of a DPIA

  1. A description of the purposes and means of processing
  2. An assessment of necessity and proportionality in relation to data subject rights
  3. Identification and assessment of risk
  4. The measures envisaged to mitigate risk

Obligations of processors (Article 28)

ObligationContent
Processing only on instructionsProcessing on the documented instructions of the controller
ConfidentialityAuthorised personnel to be bound by confidentiality
Security measuresTechnical and organisational measures
Control of sub-processingNo sub-processor without authorisation
AssistanceAssistance with the DPIA and with breach notification
Deletion or returnDeletion or return of data at the end of the service
AuditSubmission to audit by the controller

The penalty regime

TierMaximum fineScope
HighestEUR 20 million or 4% of global annual turnoverBreach of core principles, data subject rights or international transfer rules
MiddleEUR 10 million or 2% of global annual turnoverFailure to keep records, failure to appoint a DPO, inadequate breach notification

Significant enforcement decisions

UndertakingFineReason
MetaEUR 1.2 billionUnlawful EU-US data transfers
TikTokEUR 530 millionUnlawful EU-China data transfers
AmazonEUR 746 millionTargeted advertising without valid consent
InstagramEUR 405 millionBreach of children’s data protection
LinkedInEUR 310 millionInvalid legal basis for processing

Compliance points for Chinese companies

Scenarios

ScenarioObligation
Offering AI services to users in the UnionFull GDPR obligations
Processing personal data of users in the UnionValid legal basis required
Transferring EU user data back to ChinaSCCs plus a TIA, BCRs or an adequacy decision
Deploying AI model nodes in the UnionDPIA and protection of data subject rights

The EU-China transfer route

  1. Check the adequacy list — China is not on it.
  2. Sign the SCCs — select the appropriate module, usually Module 2 (controller to processor).
  3. Carry out a TIA — assess whether Chinese law affects performance of the SCC obligations.
  4. Adopt supplementary measures — encryption, pseudonymisation and similar measures where the TIA identifies risk.
  5. Protect data subject rights — provide channels through which the rights in Articles 12 to 22 may be exercised.

PIPL and GDPR compared

DimensionGDPRPIPL
Transfer mechanismsSCCs, adequacy decisions, BCRsSecurity assessment, certification, standard contract
Data localisationNo general requirementRequired for operators of critical information infrastructure
Automated decision-makingArticle 22Article 24, with greater emphasis on transparency and the right to refuse
Legal basisIncludes “legitimate interests”Greater emphasis on consent and statutory grounds
Maximum fineEUR 20 million or 4%RMB 50 million or 5%

Frequently asked questions

Q: We call an offshore API to process EU user data. Does GDPR compliance apply? A: Yes. Where the API provider is outside the Union, such as in the United States, the movement of data from the Union to that provider is a restricted transfer, requiring SCCs and a TIA or another appropriate safeguard. TikTok was fined EUR 530 million in respect of EU-China transfers.

Q: Is signing the SCCs sufficient? A: No. A TIA must be carried out before the SCCs are signed, assessing whether the law of the destination country affects the SCC obligations. Where the TIA identifies risk, supplementary measures such as encryption and pseudonymisation are also required.

Q: Can a single privacy policy serve both China and the EU? A: It is not advisable. The requirements of the PIPL and the GDPR differ, for example on data localisation, separate consent and transfer mechanisms, and a jurisdiction-specific approach is preferable.


This article is prepared on the basis of the GDPR (Regulation (EU) 2016/679) and the 2021 SCC templates. For assistance with GDPR compliance or a data export security assessment, please contact Geason Law Offices.

Geason Law Offices AI Industry Research Group | Reviewed by Ho Qianggao