UK: Data Protection – Preparing For Brexit

Last Updated: 20 March 2019
Article by Jessica Vautier

It seems like yesterday everyone was amending their contracts to comply with the General Data Protection Regulation (GDPR). However, Brexit (assuming it happens!) is likely to bring with it yet more changes – and if the UK leaves without a deal, these changes are coming up fast.

As it stands, the UK will leave the EU by automatic operation of law on Friday 29 March 2019, whether or not we have agreed a deal with the EU. If a deal is reached before then, on the current terms there would be a transition period until December 2020 (which could be further extended until December 2022) during which EU laws will continue to apply to the UK. While it is possible that the 29 March Brexit date will be extended to avoid "no deal", this will only happen if Parliament votes in favour, as well as the remaining EU member states. It is therefore prudent to plan with a "no deal" Brexit on 29 March in mind.

The GDPR will continue to apply to the UK post-Brexit. This is because, in the event of a "no deal" Brexit, the UK government plans to make the GDPR directly part of UK law (with some amendments so that it makes sense in the context of the UK as a non-EU country). This amended version is being called "UK GDPR". If there is a deal, the application of this will be delayed, as EU law will be interpreted as if the UK was still a member state.

The UK will recognise European Economic Area (EEA) countries and Gibraltar as "adequate" to allow data to continue to flow from the UK to the EU. EEA countries are the EU member states plus Iceland, Liechtenstein and Norway – these countries are all subject to the GDPR.

However, the EU has confirmed that the UK will be a "third country" once it leaves the EU. This means that unless and until the EU adopts an adequacy decision in relation to the UK, the EU will not automatically consider the UK "adequate" to allow personal data to flow from the EU to the UK. If there is a deal, it is possible the EU will make an adequacy decision before the end of the transition period (but this is not definite as such decisions take time, e.g. the recent Japan adequacy decision took around 2 years to negotiate).

We therefore suggest that data controllers and processors consider the following:

Whose personal data you are processing, and where it is being transferred

EEA to UK transfers

If there is no adequacy decision in respect of the UK, you will need to comply with the requirements under the GDPR for sending personal data outside the EEA. In many cases the simplest way of doing this will be to include the Standard Contractual Clauses in your contracts in relation to this data processing.

This applies both to the transfer of personal data to third parties and between companies in a group structure.

UK to EEA transfers

The UK government has confirmed that no additional measures will be required to send personal data from the UK to the EEA.

UK to non-EEA country transfers

The UK GDPR will impose broadly the same requirements as under the GDPR if you transfer personal data outside the UK to non-EEA countries.

The UK government has confirmed that it will consider "adequate" the countries which the European Commission has made a finding of adequacy about.

UK organisations wishing to continue to make transfers to US organisations under the Privacy Shield will need to check that the US organisation has made the necessary update to its commitment to compliance with the Privacy Shield, to expressly state that those commitments apply to transfers of personal data from the UK.

Intra-UK transfers

The UK GDPR will impose broadly the same requirements as under the GDPR if you never transfer personal data outside the UK or receive personal data from outside the UK.

Updates to existing documentation (e.g. privacy policy, privacy notices and the data protection provisions in your contracts)

Under the GDPR, your privacy notice must include details of personal data transfers to countries outside the EEA or international organisations.

Depending on how the data protection provisions in your contracts have been drafted, they may not make sense once the UK has exited the EU. For example, your contracts may state that personal data will not be transferred outside the EU.

Data Protection Officer

If you have a Data Protection Officer (DPO), they can continue in this role in relation to the UK and the EU provided that they have expert knowledge of both UK and EU data protection law and are "easily accessible" from both. As the two data protection regimes will continue to be very similar post-Brexit, this should not be an issue.

Representatives in the UK and/or the EU

Controllers and processors not established in the EU who process personal data of EU data subjects are required to appoint a representative within the EU, unless an exception applies. Any enforcement proceedings which the regulator could bring against the relevant controller or processor for non-compliance may be brought instead against this representative.

Controllers and processors based in the UK processing personal data of EU data subjects will therefore be required to comply with this requirement.

Likewise, if the current draft regulations are implemented, controllers and processors not established in the UK but processing personal data of UK data subjects will be required by UK law to appoint a representative within the UK. Such representative would have the same potential liability in the event of a claim.

In each case, there must be a written document to appoint such representative – this should generally take the form of a services contract between the parties.

Lead supervisory authority

The one-stop-shop means some organisations operating across more than one EU member state, or engaging in processing likely to substantially affect individuals in more than one member state, can usually deal with one European supervisory authority, who would take action on behalf of the others. However, once the UK leaves the EU, the UK's Information Commissioner's Office cannot be an organisation's lead supervisory authority in the EU. If the UK is currently your lead supervisory authority, you will need to review whether you can have a new lead authority to benefit from the one-stop-shop.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions