UK: Brexit And IT Law (II): Data Protection

Last Updated: 8 February 2017
Article by Deirdre Moynihan

This is the second in a series of occasional blogs we'll be writing about what Brexit means for IT and IT Law in the coming weeks and months. Deirdre Moynihan reviews what Brexit is likely to mean for Data Protection, where the approach to implementing the General Data Protection Regulation could well turn out to be a litmus test of what will happen more generally.

In his first Brexit and IT law blog, Richard comments that that one of the surprising things about the EU Referendum was that no one really explained what the UK was actually voting to leave. Similarly, aside from promises that, if we "take back control", "we can make our own laws" no one really explained what that would actually mean for the UK. Will the government just draw a line through all EU law with effect from the date on which the UK formally leaves the EU ("Exit Day")? Or will it pick and choose what laws it wants or, perhaps more accurately, needs to keep? As Richard mentions, our view is that, for the purposes of legal certainty, the UK should at least retain communications, data protection, e-commerce, intellectual property, and other IT-related laws that come from the EU. In this, our second blog on Brexit and IT, we look at the potential implications of Brexit for UK data protection law.

The pervasive collection and use of all types of data has been at the forefront of legislators' and regulators' agendas in recent years. Specifically with regard to personal data, the broad consensus at a European level for the last few years was that the EU's original, 1995 law on data protection (Directive 95/46EC) (the "Directive"), was not fit for purpose and required substantial amendment to cater for the ever-increasing ways in which personal data is generated, collected and used. Following years of proposals, counter-proposals, analysis, negotiation and horse-trading, a new data protection regulation (Regulation (EU) 2016/679) (the "GDPR") was adopted by the EU's law-makers in April 2016.

Unlike previous European legislation on data protection, the GDPR is more prescriptive – both in terms of its requirements and its method of implementation – than the Directive. Compliance with the GDPR raises significant challenges for all companies that control and process personal data. However, the timing, nature and extent of the GDPR create unique challenges for the UK as a result of Brexit:

  • The new law is a regulation rather than a directive. This means that, except for areas in which discretion is granted to member states, no additional steps need to be taken by UK legislators for it to become law in the UK. On 25 May 2018 the GDPR will come into full force and effect throughout the EU. The result of the UK referendum does not change that fact. That date is before the end of the 2-year negotiation period that will be triggered by notification to leave the EU under Article 50. Therefore, unless the UK and the EU reach an agreement as to the status of UK data protection law (i) prior to 25 May 2018, there will be a period of time between 25 May 2018 and the Exit Date when the GDPR will become law the UK and (ii) after Exit Day, the GDPR will (without more) cease to be effective in the UK.
  • There is no blueprint for what happens when a country leaves the EU. Therefore, when we say that the UK and the EU need to reach an agreement as to the status of UK data protection law post Exit Day, we do not know whether that means that (i) the UK should adopt the GDPR in its entirety, (ii) the UK should adopt the GDPR in part only, (iii) the UK should retain the Data Protection Act 1988 and not implement the GDPR, or (iv) the UK should completely re-write UK data protection law (this option does not give the UK carte blanche – the UK will remain part of the Council of Europe and its 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) will continue to impose obligations on the UK with regard to data protection). Irrespective of the option ultimately chosen, we believe that the UK will need to seek an adequacy decision from the EU so that companies can transfer data to the UK with confidence that the UK is adequate from an EU data protection perspective.

The ICO (the UK data protection regulator) has stated that "international consistency around data protection laws and rights is crucial both to businesses and organisations and to consumers and citizens" and that for this reason, it would be speaking to the UK government to say that reform of UK data protection law remains necessary. Although the comments from the ICO show that it is alert to the possible implications of Brexit on data protection, it does not give much comfort to data controllers and processors as to what to expect post Exit Day. Companies cannot sit back and watch what happens. They need to start planning now to ensure compliance with GDPR by 25 May 2018:

Pre Exit Day

  • as mentioned above, there will be a period of time pre-Exit Day when the GDPR will be effective in the UK and a failure of comply would place companies in breach of their legal obligations

Post Exit Day

  • the GDPR is extra-territorial in effect – controllers and processors who are outside the EU (which will include the UK post Exit Day) are subject to its rules if the data they process relates to an individual in the EU when goods or services are being offered to that individual or where monitoring of their behaviour (online behavioural advertising) takes place in the EU
  • multi-national companies will need to comply with the GDPR in other EU countries, therefore, compliance in the UK should form part of the EU-wide compliance programme
  • from a contractual perspective, entities that allow third parties to process personal data will expect those entities to treat data from any EU country in the same way. Therefore, the requirements of the GDPR will still apply for UK processors

The UK has always regarded itself as at the forefront of technological development and as having a sophisticated legal system that is designed to encourage and facilitate business and attract companies to the UK. In our view, adherence to EU data protection principles identical or similar to GDPR post Exit Day is a vital to the continued success of digital UK business and the UK digital economy.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.