If you want to get along with Mexican data protection lawyers, you may want to learn this concept: “remisión de datos”. What is this? Well, this what most international privacy experts call a Controller (C) to Processor (P) data transfer. And what about C2C data transfers? Well, those are called data transfers (safe ground, here). This may sound like a “caprice”, but serious lawyers will handle this difference quite seriously (and it should be under Mexican law).
Let’s begin with the basics. Under Mexican law, a Data Controller (responsable) and a Data Processor (encargado) are understood in the same way as in many other data protection laws around the world. If we consider the US, we may add that regarding the processing of personal data, a Service Provider will be regulated as a Data Processor, and this is broadly understood already.
Mexican data protection laws specifically regulate data communications; essentially as follows:
|C2C = Data Transfers
|C2P = Data transmissions
Under the new EU Standard contractual clauses (SCCs) this may sound “incomplete”, since to comply with the GDPR we now find four modules to regulate transfer scenarios to third countries: Controller to Controller (Module 1), Controller to Processor (Module 2), Processor to Processor (Module 3), and Processor to Controller (Module 4). We will get to this later.
The regulation of data transfers in Mexico is relatively simple, since they are carried out between controllers identified as "transferor" (exporter) and "receiver" (importer) which must process the data with the corresponding obligations of a controller. The main differentiating notes in Mexico would be:
(i) That the exporter must guarantee that the data subjects have been informed of the transfer (through the corresponding Privacy Notice) and, if necessary, must have obtained the data subjects’ consent for the transfer of their data.
(ii) The exporter must communicate to the importer the Privacy Notice that regulates the processing of the data to be transferred, so that the importer "respects" the purposes of the processing.
(iii) The importer is obliged to communicate to the data subjects its own Privacy Notice (a) at the first contact it has with them or, as the case may be (b) before using the data if it will use the data for a purpose other than the one "originally consented to".
It should be noted that data transfers must be "formalized" and that there are no restrictions on international destinations; that is, there is no regime of third countries or specific destinations to which data may not be transferred, unless the destination does not provide similar protection to that provided by Mexican law.
The regulation of data transmission (encargos) is also relatively simple: it is mandatory to "formalize" them and, as in the case of transfers, there are no restrictions on international destinations. Significant differences:
(i) Data transmission do not need to be consented to by the data subjects; these data communications to third party service providers are understood as necessary and as an ordinary part of the operation of a business, so no consent is required to carry them out.
(ii) Data transfers do not require to be informed to the data subjects; Mexican law expressly excludes the obligation of the controllers to inform about these communications in their Privacy Notices.
Under Mexican law, the obligations of a data processor are like those of other international regimes:
(i) It shall process personal data in accordance with the controller's instructions,
(ii) It shall refrain from processing personal data for purposes other than those instructed by the controller,
(iii) It shall implement adequate security measures to protect personal data process on behalf of the controller,
(iv) It shall delete the personal data being processed once the legal relationship with the controller has been fulfilled or if the controller instructs such deletion.
(v) It shall refrain from transferring data, unless the controller authorizes and instruct such transfer (to another controller, and even to another processor).
At this point, it is important to point out that there are still controllers and processors who do not adequately differentiate between a transfer and a transmission, unnecessarily complicating certain international "transfers". Why? Because if any party improperly classifies a (C2P) transmission as a (C2C) transfer, it may inappropriately subject its performance to the consent of the data subjects (which is not required) or to the "transfer" being informed in a Privacy Notice (which is not required). This may happen when you propose a data transfer that will be understood as a data transmission in Mexico and the proposing party does not clarify that it will be regulated as a C2P data communication: that is, as a “remisión de datos”.
These scenarios may get even more complicated when proposing to a Mexican counterpart to regulate Processor to Processor data transfers (SCCs’ Module 3) or Processor to Controller data transfers (SCCs’ Module 4). And let’s not forget, a European counterpart using SCC cannot change the wording of any given module.
Our approach to resolve these situations is to clearly define the role of the Mexican party and to communicate that we (a non-Mexican counterpart) understand the local difference between a data transfer and a data transmission. Proposing a specific addendum where this difference is noted may also help you to get your C2C, C2P, P2P or P2C data transfers approved faster in Mexico.
Article provided by INPLP member: Héctor Guzmán-Rodríguez (BGBG, Mexico)
Dr. Tobias Höllwarth (Managing Director INPLP)