The Data Outbound Negative List of the Beijing Free Trade Zone

Summary

• A new scenario-based, field-level data outbound negative list has been issued, applicable to companies operating in the Beijing FTZ
• This is the third set of special cross-border data transfer rules to be formulated in a Chinese pilot FTZ
• For companies in the Beijing FTZ, the process of completing a Beijing Negative List filing could be as short as five working days
• Companies outside the zone will also find the new list to be an important reference standard

On August 30, 2024, the Beijing Municipal Cyberspace Administration (the "Beijing CAC"), the Beijing Municipal Bureau of Commerce, the Beijing Municipal Government Services and Data Management Bureau jointly released the first scenario-based, field-level data outbound negative list of the China (Beijing) Pilot Free Trade Zone (the "Beijing FTZ"), the China (Beijing) Pilot Free Trade Zone, List for the Administration of the Cross-Border Transfer of Data (Negative List) (2024 Edition) (中国（北京）自由贸易试验区数据出境管理清单（负面清单）（2024版）), referred to here as the "Beijing Negative List".

The Beijing Negative List covers data in five industrial sectors: automotive (noting that the current edition specifically excludes its application to automatic driving companies), pharmaceutical, civil aviation, retail & modern services, and artificial intelligence training. Those sectors are key industries with rapidly increasing data export demands. According to the official policy interpretation, the Beijing Negative List will be dynamically updated and extended to cover data in more industrial sectors in the future.

Aligning with the general cross-border data transfer ("CBDT") regime set out in the Provisions for Facilitating and Regulating the Cross-Border Flow of Data (促进和规范数据跨境流动规定) (the "New CBDT Rules"), the Beijing Negative List relaxes the triggering thresholds of ex-ante CBDT requirements (i.e. general CAC filings)— (1) conducting the security assessment of the Cyberspace Administration of China ("CAC") and; (2) concluding and filing the CAC's Standard Contractual Clauses or obtaining personal information protection certification. Data that are not listed can be exported provided that such data transfer activities have been filed on the Beijing Facilitating Cross-border Flow of Data Service Platform (北京市数据跨境流动便利化服务平台) operated by the Beijing CAC.

On September 11, 2024, Bayer passed the first negative list filing in the Beijing FTZ. According to public records, the entire filing process took only five working days. Compared to completing the general CAC filings or conducting a general data outbound filing in the Lin-Gang Special Area of the China (Shanghai) Pilot Free Trade Zone, the duration of completing the Beijing Negative List filing appears to be significantly shorter.

“In addition to regulating CBDT activities, the Beijing Negative List also clarifies the scope of important data, by proposing uniformed important data identification rules in the Beijing FTZ”

In addition to regulating CBDT activities, the Beijing Negative List also clarifies the scope of important data, by proposing uniformed important data identification rules in the Beijing FTZ. Important data is an elusive concept in Chinese data protection legal regime that causes long-lasting confusion in practice. The rules provide great reference value for identifying "important data" for all Chinese market players, and provide a legislative model for other Chinese industrial and regional administrative authorities outside the Beijing FTZ, who are delegated to issue rules for identifying important data.