Amid the constitutional and political uncertainties surrounding the Brexit process, the UK Government has provided welcome assurance on the data protection front. Guidance issued by the Department for Digital, Culture, Media & Sport (DCMS) confirms how UK data protection law will work in the event the UK leaves the EU without a deal. Whilst the Government still regards a No Deal Brexit as “unlikely”, given the extremely severe implications of that scenario for transfers of personal data into and out of the UK, the DCMS confirmation is hugely helpful in terms of the preparations needed for that eventuality.
The draft text of the EU-UK withdrawal agreement was published by the UK Government and the European Union yesterday, providing some of the first concrete indicators of the possible direction of travel in the area of data protection. In this post, we discuss ten initial conclusions from the draft text.
The Department for Digital, Culture, Media and Sport (‘DDCMS’) has today released guidance on “Data protection if there’s no Brexit deal”, which is part of its preparations for if there is a “no deal” scenario when the Article 50 negotiating period comes to an end on 29 March 2019. The UK will become a “third country” on its exit from the European Union, which means that unhindered cross-border transfers of data will no longer automatically be able to take place between the UK and the EU. The guidance confirms that, given the “unprecedented alignment” between the UK and EU data protection regimes, the UK would continue to allow transfers of data from the UK to the EU at the point of exit. However, the Commission has made it clear that they would not make a decision on adequacy until the UK is a third country (that is, after 29 March 2018), and its procedure for reaching a decision typically lasts several months.
To date, the main legacy of the Brexit referendum of 2016 appears to be a country split in half: some badly wish the UK would continue to be a member of the EU and some are equally keen on making a move. Yet, there seems to be at least one thing on which Remainers and Leavers will agree: nobody knows exactly what is going to happen. The same is true of the effect of Brexit on UK data protection. However, as Brexit day approaches, it is becoming imperative for those with responsibility for data protection compliance to make some crucial strategic decisions. To help with that process, here are some pointers about what we know and what we don’t know.
The European Court of Human Rights decided on June 22, 2017 that France’s DNA database for convicted criminals disproportionately interferes with individuals’ privacy rights because of its one-size-fits-all retention period and the failure to include a procedure to request erasure.
Part 9 of Future-Proofing Privacy: Future-Proofing Privacy: International Data Transfers 2.0. The Data Protection Directive and the Regulation both impose restrictions on the transfer of personal data by EU based businesses (whether those businesses are data controllers or data processors) to destinations outside the EEA. These restrictions, however, have not been uniformly implemented by EU Member States. In some Member States additional requirements apply, such as prior notification to or approval by the local DPA, particularly where companies wish to rely on EU Model Clauses or BCRs. This approach is essentially set to continue
with some variations.
In a recent column for The New York Times, Nils Muiznieks, the top human rights official for the Council of Europe, warned that recent surveillance laws in Europe undermine fundamental rights for European citizens. Plus, an October 29, 2015, resolution of the European Parliament complains of an “obvious downward spiral” resulting from mass surveillance laws in the U.S. and Europe. That certain European countries have laws permitting mass surveillance is not news to lawyers who follow the matter. In a 2012 whitepaper, we highlighted the broad and sometimes unsupervised powers of intelligence agencies of certain European governments. As Muiznieks’s column states, intelligence agencies are getting more surveillance power, not less. France’s July 2015 surveillance law permits intelligence agencies to scan metadata of all citizens in order to detect suspicious patterns. Other European countries are also broadening surveillance powers to protect against terrorism.
The Opinion of the Advocate General of the Court of Justice of the European Union on the case assessing the status and validity of Safe Harbor has created significant uncertainty relating to its immediate future. While the CJEU has not yet ruled, the AG’s decisions are typically quite influential. The AG’s view is that the Safe Harbor program does not provide an adequate level of data protection and that it should have already been invalidated by the European Commission.
The Data Protection Directive and the Regulation both impose restrictions on the transfer of personal data by EU based businesses to destinations outside the EEA. The of the Data Protection Directive, however, have not been uniformly implemented by EU Member States. In some Member States additional requirements apply, such as prior notification to or approval by the local DPA, particularly where companies wish to rely on EU Model Clauses, BCRs or the U.S.-EU Safe Harbor Framework. This approach is essentially set to continue under the Regulation with some variations. This entry is an excerpt from Hogan Lovells’ “Future-proofing privacy: A guide to preparing for the EU Data Protection Regulation.”
Until very recently, data protection in South Africa was regulated only under the broad constitutional right to privacy, the common law and a few pieces of legislation that contained interim provisions relating to data protection. In November 2013, South Africa enacted the Protection of Personal Information Act, the country’s first data protection-specific legislation. The Act partially came into force in April 2014 to create an information regulator and to codify concepts such as “processing” and “personal information”. The commencement of those sections is indicative of the processes being put in place by the government of South Africa to ensure that the commencement of the remaining sections is met with relevant support, in the form of regulations and the establishment of an information regulator. Though the remaining sections of the Act (including the material provisions) are not yet enforceable and have no foreseeable or determinable effective date, businesses operating in South Africa should be aware of the Act’s provisions as they may one day come into force.
In a new turn to the Maximilian Schrems case in Ireland, the Irish High Court on 18 June 2014 decided to refer several questions to the European Court of Justice, including whether national data protection authorities in Europe may disregard the Safe Harbor decision of the European Commission when assessing whether the U.S. recipient of data ensures an adequate level of data protection required under EU law. Depending on the outcome of the case, European and U.S. companies may not be able to rely on Safe Harbor to legitimise cross-border data transfers in the future.