April 2023
Elizabeth Pai and Hannah Kuo
In accordance with Article 21 of the Personal Data Protection Act, the Ministry of Labor announced on February 20, 2023 that since the laws and regulations on personal data protection in the Mainland China are not comprehensive yet, “human resources recruitment industry” are restricted from cross-border transfers of personal data of any concerned parties to the Mainland China. The term “human resources recruitment industry” refers to a private employment service institution approved under Article 34 of the Employment Service Act or an employment service agency for people with disabilities approved under Article 35, Paragraph 3 of the People with Disabilities Rights Protection Act. According to explanation of the announcement, cross-border transfers of personal data that are subject to the restrictions include：the human resources recruitment industry shall not retain enterprises in the Mainland China to process personal data, the data center or server that stores personal data shall not be located in the Mainland China, and personal data shall not be transmitted to the Mainland China.
Pursuant to Article 21 of the Personal Data Protection Act, the central government authority in charge of an industry may impose restrictions on a cross-border transfer of personal data carried out by a non-government agency under any of the following circumstances: (1) where major national interests are involved; (2) where an international treaty or agreement so stipulates; (3) where the country receiving the personal data lacks proper regulations on the protection of personal data and the data subjects’ rights and interests may consequently be harmed; or (4) where the cross-border transfer of the personal data to a third country (territory) is carried out to circumvent the Personal Data Protection Act. Pursuant to the regulation, the National Communications Commission has imposed the restriction on any cross-border transfer of a customer’s personal data to the Mainland China by “communications business operators,” and the Ministry of Health and Welfare has imposed the restriction on any cross-border transfers of the personal data of the data subjects to the Mainland China by “social worker’s offices.”
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