Subject to the deadlock in parliament being broken, or an extension of the Article 50 Brexit process, the UK’s 46-year European Union membership will cease in a matter of days. In the privacy world, the primary focus for most companies to date has, quite rightly, been on ensuring that data flows in and out of the UK can continue lawfully after that date. But for companies operating across Europe, and indeed across the world, with establishments or customers in the UK, Brexit also has implications in terms of the applicability of the UK data protection framework to their operations. The UK government has published its catchily-titled draft Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, which amend the territorial applicability provisions of the UK’s Data Protection Act 2018 to ensure the law applies appropriately after the exit day.
Join us in March as we explore key questions on the California Consumer Privacy Act, TCPA considerations for financial services, regulatory decisions on transparency and evolving industry approaches to the GDPR, artificial intelligence, as well as how Brexit will impact data protection and privacy professionals.
On 23 January, the European Commission announced that it had adopted an adequacy decision in relation to Japan, to enter into force immediately. The mutual agreement, which covers Japan’s 127m citizens as well as the whole of the EU, allows personal data to be transferred between Japan and the EU without the need for additional safeguards such as Standard Contractual Clauses, and creates the largest area of safe data transfers in the world.
Right now, the whole of the U.K. appears to be on the same spot looking over a precipice. However, this is not the moment to be blind. As politicians struggle to find a magic formula for a prosperous Brexit, businesses are stepping up their efforts to mitigate the damage of a possible “no-deal Brexit.” The data protection community is no different. The proposed withdrawal agreement would have preserved the status quo in data protection terms, at least until the end of the transition period in December 2020. However, if the U.K. leaves the EU without a deal, the implications for international data flows and privacy compliance generally will be severe. Therefore, British pragmatism demands an urgent and thorough approach to preparing for the eventuality of a no-deal Brexit.
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.
Unless there is a political earthquake (some would say a miracle) Brexit will happen on 29 March 2019. Upon Brexit the UK will cease to be an EU Member State and become a so-called ‘third country’. As a result, UK-based organisations, which in the context of transfers of personal data to countries outside the EU have always been exporters, will become importers of data originating from the EU. This is a serious concern because transfers of personal data from the EU to third countries are severely restricted. So a key UK Government objective from day one has been to ensure that the UK is regarded as an adequate jurisdiction, which would allow unconstrained transfers of personal data from the EU. But will it be?
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.
With the current focus on the coming into effect of the EU General Data Protection Regulation, one could (almost) be forgiven for forgetting about the question of international data flows. However, given the political and legal developments currently affecting the future of international data transfers, that would be a very serious strategic mistake. Legitimising data globalisation remains a top business priority in our uber-digitised world. The coming of age of cloud-based services, the continuous advance of mobile communications and the push by developed and developing countries to reach a global market have made international data transfers more essential than ever. At the same time, the level of regulation affecting those transfers is becoming more impenetrable and politically charged. Against this background, what are the issues that need to be taken into account to develop a solid global data flows legal strategy?
Don’t miss out on key events from our Privacy and Cybersecurity team in March 2018. This month, our team will be discussing a variety of privacy and cybersecurity issues ranging from autonomous vehicle privacy to GDPR compliance. We hope you can join us!
Please join us for our Upcoming 2018 Privacy and Cybersecurity Events.
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.
Making predictions for the year ahead is possibly as desirable as unreliable. In a world of unlimited data and advanced science, it would be tempting to think that the future is already written. Algorithms and artificial intelligence will show us what lies ahead with immaculate accuracy. Or perhaps not. At least not yet. To say that the world is in turmoil is an understatement and the same is true of the world of privacy and data protection, which makes predicting the future particularly tricky. But since the urge to plan, budget and prepare for what is likely to happen next is so real, now is a good time to pause, reflect about what’s going on, and make some predictions for 2018.
Please join us for our November 2017 Privacy and Cybersecurity Events.
On September 13, the U.K. government introduced in Parliament the Data Protection Bill. The main aim of the bill is to implement the General Data Protection Regulation (EU) 2016/679 into U.K. domestic law. However, as perhaps reflected in the length and complexity of the bill, it is also intended to do several other things. This post outlines key observations on the structure and content of the bill.
You may not have noticed it, but despite all of the distractions caused by Brexit and the General Data Protection Regulation (Regulation (EU) 2016/679), the UK Information Commissioner’s Office has been extremely active on the enforcement front in recent times. One of the features of this activity has been the variety of infringements targeted and, in particular, the focus on e-mail marketing. More specifically, the ICO has taken enforcement action by way of monetary penalties against well-known consumer brands such as Flybe, Honda, Morrisons and Moneysupermarket, for practices that might not have been seen as so out of order in the past. However, given the current tough stance taken by the ICO in connection with direct marketing practices, it would not be surprising to see future enforcement actions in this area.
On 7 August 2017, the UK Department for Culture, Media and Sport published its Statement of Intent on a proposed Data Protection Bill, which will replace the current UK Data Protection Act 1998. The Bill is designed to fully implement the two new laws emanating from the EU – the General Data Protection Regulation and the Data Protection Law Enforcement Directive – in an effort to make the UK’s transition out of the EU as smooth as possible from a data protection perspective and to ensure that both commercial and law enforcement data flows ‘remain uninterrupted after the UK’s exit from the EU’.
“A new law will ensure that the United Kingdom retains its world-class regime protecting personal data”. This is today’s strong statement by Her Majesty The Queen reflecting the level of priority given by the UK government to privacy and data protection. Aside from the political controversies surrounding the recent general Election and the prospect of Brexit, the Queen has confirmed that during this Parliament the government intends to pass a new Data Protection Act replacing the existing one.
A close observer of the GDPR will have noticed that, in several places, individual EU Member States can implement derogations from the GDPR requirements. Of course, as a regulation under EU law there is less scope for local flexibility under the GDPR than under the current EU Data Protection Directive 95/46. Yet the GDPR does, in a number of key areas, allow an EU Member State to set down local laws that could allow a more locally relevant flavour to a particular aspect of compliance. The closing date for submitting views is Wednesday, 10 May 2017.
Please join us for our March 2017 Privacy and Cybersecurity Events.
After all of the 2016 drama, the start of a brand new year is a welcome development in itself – a clean sheet for a script yet to be written. However, 2017 will not be without challenges and the same applies to the world of privacy and data protection. Many of the big issues that arose during 2016 will need to be addressed in 2017. In addition, new questions will no doubt emerge. Here is an overview of the privacy challenges that lie ahead and what can be done about them.
In yet another key case dealing with the balance between citizens’ privacy and the ability of the state to intrude into it, the Court of Justice of the European Union has ruled on the compatibility with European Union law of legislation that authorises the retention of communications data, which includes personal data. The reference from the UK Court of Appeal resulted from a challenge to the Data Retention and Investigatory Powers Act 2014 brought by individuals that include Tom Watson, deputy leader of the Labour Party and represented by Liberty. Interveners include the Law Society of England and Wales, the Open Rights Group, and Privacy International. The CJEU considered the compatibility of such legislation with the e-Privacy Directive, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union—which protect private and family life and personal data respectively—and its previous decision in C-293/12 Digital Rights Ireland—which invalidated the Data Retention Directive.
Please join us for our October 2016 Privacy and Cybersecurity Events.
Please join us for our September 2016 Privacy and Cybersecurity Events.