EU, South Korea Look to Data Transfer Privacy Deal in 2018

By Stephen Gardner

South Korean and European Union companies would be able to more easily exchange personal data under a mutual privacy recognition agreement on track to be in place in 2018, South Korean and EU officials said Nov. 20.

If the EU and South Korea reach a mutual privacy adequacy agreement, it would allow companies operating in the two jurisdictions, such as Hyundai Motor Co. and Korean Air Lines Co. Ltd., to transfer customers’ and employees’ personal data without relying on individual consent, or binding corporate rules or contractual privacy provisions approved by the EU.

Mutual adequacy recognition would “cut red tape and add to the benefits of our existing free trade agreement,” Justice Commissioner Vera Jourova, the EU’s top data protection official, said during a Nov. 20 EU-South Korea workshop in Brussels.

The EU and South Korea recognize privacy as a fundamental right, which should facilitate the economies reaching an adequacy agreement in 2018, Jourova said.South Korea and Japan top the EU’s list for designating data transfer privacy adequacy, Bruno Gencarelli, head of the data protection unit within the European Commission Justice Directorate, said at the event.

EU Adequacy

EU law allows personal data to be easily transferred out of the bloc through a finding that a third country’s privacy regime is adequate. Only a handful of countries and specific transfer programs have received such approval.

The EU recognizes the privacy regimes of Andorra, Argentina, Canada, the Faeroe Islands, Guernsey, Israel, the Isle of Man, Jersey, New Zealand, Switzerland, and Uruguay as adequate to protect the personal data of EU citizens. In addition, the EU considers data transferred under the EU-U.S. Privacy Shield and certain airline passenger data transfer agreements to be adequately protected.

Park Jong-hyun, director of the Personal Information Protection Cooperation Division in South Korea’s Interior Ministry, speaking at the event in Brussels, said there is “90 percent or more” similarity between the EU and South Korean privacy frameworks in terms of consent, data breach notification, and sanctions for violations.

Similarities between the South Korean Personal Information Protection Act and EU privacy laws—both the EU’s present Data Protection Directive and the General Data Protection Regulation coming in May 2018—will be a central part of the adequacy discussion.

“There is a very high level of convergence” between the two privacy regimes, Jourova said.

Independent Oversight

South Korea’s main stumbling block for adequacy recognition may be that its Personal Information Protection Act is overseen by the South Korea Interior Ministry, rather than an independent agency, Park said. It may also be a problem that the part of the ministry in charge of the privacy law, the Personal Information Protection Cooperation Division, isn’t authorized to issue sanctions, he said.

As a way around those potential conflicts, South Korea may designate the independent Korea Communications Commission (KCC), which has sanctioning powers, to act as the oversight authority for EU-Korea data transfers, Park said.

The KCC had a privacy regulatory role even before the country’s overall framework privacy law was enacted in 2011.

The KCC oversees the Network Act, which safeguards the privacy of online services and predates the act, SooYoun Choung, a Korea Internet and Security Agency spokewoman, told Bloomberg Law Nov. 20. The KCC’s authority could be applied to personal data transferred via networks for South Korea-EU data transfers, she said.

To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bloomberglaw.com

To contact the editor responsible for this story: Donald Aplin at daplin@bloomberglaw.com

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