(1)
Pursuant to Directive 95/46/EC, Member States are required to provide that the transfer of personal data to a third country may take place only if the third country in question ensures an adequate level of protection and if the Member States’ laws implementing other provisions of the Directive are complied with prior to the transfer.
(3)
Pursuant to Directive 95/46/EC the level of data protection should be assessed in the light of all the circumstances surrounding a data transfer operation or a set of data transfer operations and giving particular consideration to certain specified elements relevant for the transfer.
(4)
Given the different approaches to data protection in third countries, the adequacy assessment should be carried out, and any decision based on Directive 95/46/EC should be made and enforced in a way that does not arbitrarily or unjustifiably discriminate against or between third countries where like conditions prevail, nor constitute a disguised barrier to trade, regard being had to the Union’s present international commitments.
(7)
The legal standards for the protection of personal data in New Zealand are primarily set out in the Privacy Act, as amended by the Privacy (Cross-border Information) Ammendement Act of 7 September 2010 (Public Act No 113 of 2010). It predates Directive 95/46/EC, and is not limited to automatically processed data or structured data in a filing system, but covers all personal information in whatever shape or form. It covers the entire public and private sectors, with a few specific public interest exceptions that one would expect in a democratic society.
(10)
The legal data protection standards applicable in New Zealand cover all the basic principles necessary for an adequate level of protection for natural persons, and also provide for exceptions and limitations in order to safeguard important public interests. These legal data protection standards and the exceptions reflect the principles laid down in Directive 95/46/EC.
(11)
The application of the legal data protection standards is guaranteed by administrative and judicial remedies, and by independent supervision carried out by the supervisory authority, the Privacy Commissioner, who is endowed with the kinds of powers set out in Article 28 of Directive 95/46/EC, and who acts independently. Moreover, any interested party is entitled to seek judicial redress for compensation for damages suffered as a result of the unlawful processing of his personal data.
(12)
New Zealand should therefore be regarded as providing an adequate level of protection for personal data as referred to in Directive 95/46/EC.
(13)
This decision should concern the adequacy of protection provided in New Zealand with a view to meeting the requirements of Article 25(1) of Directive 95/46/EC. It should not affect other conditions or restrictions implementing other provisions of the Directive that pertain to the processing of personal data within Member States.
(15)
The Working Party on the protection of individuals with regard to the processing of personal data established under Article 29 of Directive 95/46/EC has delivered a favourable opinion on the level of adequacy as regards protection of personal data in New Zealand (2), which has been taken into account in the preparation of this Implementing Decision.
(16)
The measures provided for in this Decision are in accordance with the opinion of the Committee established under Article 31(1) of Directive 95/46/EC,
HAS ADOPTED THIS DECISION:
1. For the purposes of Article 25(2) of Directive 95/46/EC, New Zealand is considered as ensuring an adequate level of protection for personal data transferred from the Union.
1. Without prejudice to their powers to take action to ensure compliance with national provisions adopted pursuant to provisions other than Article 25 of Directive 95/46/EC, the competent authorities in Member States may exercise their existing powers to suspend data flows to a recipient in New Zealand in order to protect individuals with regard to the processing of their personal data in the following cases:
3. Where information gathered under Article 2(1) and under paragraphs 1 and 2 of this Article provides evidence that any body responsible for ensuring compliance with the standards of protection in New Zealand is not effectively fulfilling its role, the Commission shall inform the competent New Zealand authority and, if necessary, present draft measures in accordance with the procedure referred to in Article 31(2) of Directive 95/46/EC with a view to repealing or suspending this Decision or limiting its scope.
The Commission shall monitor the functioning of this Decision and report any pertinent findings to the Committee established under Article 31 of Directive 95/46/EC, including any evidence that could affect the finding in Article 1 of this Decision, that protection in New Zealand is adequate within the meaning of Article 25 of Directive 95/46/EC and any evidence that this Decision is being implemented in a discriminatory manner.
