Personal data will be meted out – Newspaper Kommersant No. 170 (7371) of 09/15/2022
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Roskomnadzor will prohibit Russian companies from transferring personal data of citizens abroad if they are going to send them to organizations whose activities are prohibited in Russia. This follows from the by-laws developed by the Ministry of Digital Development. Interaction with Meta will also be banned (in the Russian Federation, the organization for the functioning of Facebook and Instagram has been declared extremist). Lawyers believe that users of Facebook and Instagram are not liable, but advertising agencies and stores face new risks.
“Kommersant” got acquainted with draft by-laws clarifying the procedure for prohibiting and restricting the cross-border transfer of personal data, developed by the Ministry of Digital Development. The documents were published on September 14 at regulation.gov.ru. In accordance with them, Roskomnadzor will prohibit legal entities from transferring personal data abroad if they intend to send them to organizations declared undesirable or prohibited in Russia. In particular, Meta will be considered prohibited for the purposes of transferring personal data, Kommersant was confirmed in the Ministry of Digital Development.
According to the provisions of the Law “On Personal Data”, which will come into force on March 1, 2023, data operators must inform Roskomnadzor of their intention to do so before cross-border transfer. Initially, it was assumed that companies would report to the department about each fact of transferring data abroad. In the process of working on the amendments, this requirement was softened (see Kommersant of July 6).
From the new proposals of the Ministry of Digital Development, it follows that Roskomnadzor has the right to restrict cross-border data transfer, including on the submissions of the FSB, the Ministry of Defense and the Ministry of Foreign Affairs. These structures may require you to prohibit the transfer of personal data to a certain legal entity or to a particular country. Representations have the right to send other authorities authorized to protect the “economic and financial interests of the Russian Federation.” Government agencies that perform a number of international functions (to ensure cooperation within the EAEU, transportation, diplomatic and consular relations, etc.) should not notify Roskomnadzor of the transfer of personal information. The agency will also not be able to prohibit the transfer of data by government agencies if it is related to payments, sports, culture, science and education.
By-laws describe how Roskomnadzor will deal with notifications. The previously adopted amendments establish that if the country where it is planned to transfer data has not ratified the Council of Europe Convention for the Protection of Individuals and is not on the special list of Roskomnadzor, then the operator must collect additional information about the legal situation in it, send it to the department and wait ten days . According to the draft documents, Roskomnadzor may request additional information from an operator that has filed a notification of data transfer to a particular country if it receives a complaint against any foreign person registered there. The press service of the Ministry of Digital Resources assured Kommersant that such a request procedure “would not create risks of excessive suspension of consideration of notifications.”
A Kommersant source in the online services market, whose representatives criticized the original version of the amendments (see Kommersant on June 21), said he did not expect any difficulties in connection with the new rules. Ozon told Kommersant that the company will form a position after reviewing the document. Yandex, VK and Wildberries declined to comment.
Users of social networks act as subjects of personal data, and not operators of their transfer, Yury Fedyukin, managing partner of Enterprise Legal Solutions, explained to Kommersant: “When a person transfers his own personal data to Meta, amendments and by-laws do not create liability risks.”
Interaction with Meta carries risks primarily for professional users of its social networks – bloggers, advertising agencies and store owners – as well as for “users expressing their political position,” says Vladimir Ozhereliev, head of the intellectual property practice at law firm DRC. According to Karen Kazaryan, director general of the Internet Research Institute, there will be no risks for individuals and legal entities that simply register privately on Facebook and Instagram. At the same time, the expert believes that the projects of the Ministry of Digital Development can still be finalized, since “it is not yet clear how to put them into practice.”
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