A late comment on this.
With respect to the main issue, one has to remember that a transfer of
personal data (e.g. to HQ in the USA) is a disclosure of personal data to a
Third Party (in the USA).
This means that the disclosure needs to be consistent with the First
Principle (e.g. Sched 2 condition and Sched 3 condition if needed). Fairness
will be an important issue if the Third Party (the HQ in the USA) processes
the personal data for another purpose. These considerations could easily take
you down the consent route.
If you consider that HR data are confidential, failure to obtain consent for
the disclosure to a Third Party for another purpose could lead the Data
Controller vulnerable to claims of unlawful processing.
The Second Principle (see para 6 of Sched 1, Part II - the Interpretation)
means that you have to have regard for the purpose of the Third Party. The
issue here is that if the purpose changes, the Data Controller has to be
aware of this in advance. the Data Controller is thus in a position to
approach Data Subjects if this is necessary. This step is also a consequence
if the disclosure to the Third Party is justified in terms of para 6 of
Schedule 2.
The Sixth Principle could be an issue as it might be important to ensure that
Data Subject can still obtain access to personal data in the USA. My own view
is that it is easy to construct an argument that it is unfair to disclose
personal data to a Third Party if rights cannot be exercised and the Data
Subject was unaware of this at the time of collection.
The Seventh Principle applies as the disclosure and transmission has to be
secure.
It is my view that if you crack the above you are likely to crack the Eighth.
Note that if the HQ is in the Safe Harbor you still need to consider the
application of the First-Seventh Principles
Chris
******************** E-mail confidentiality notice ********************
This message is intended for the addressee only. It is private,
confidential and may be covered by legal professional privilege or
other legal or attorney/client privilege. If you have received this
message in error, please notify us and remove it from your system.
If you require assistance, please contact our London office
(telephone +44 (0) 20 7490 4000).
Masons is an international law firm with offices in London, Bristol,
Edinburgh, Glasgow, Leeds, Manchester, Brussels, Dublin, Hong Kong,
Guangzhou and Singapore.
Further information about the firm and a list of partners is
available for inspection at 30 Aylesbury Street, London EC1R OER
or from our Web site at www.masons.com
***********************************************************************
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
www.jiscmail.ac.uk/user-manual/summary-user-commands.htm
all commands go to [log in to unmask] not the list please!
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|