What would a “no deal Brexit” mean for data protection legislation?

As the UK’s withdrawal from the EU gets closer – only 6 months to go – many members of government and the general public (across the UK and EU) are asking themselves what happens to UK legislation/regimes on 30 March 2019 if we have not agreed a “deal” with the EU which covers our exit from the EU?Although the government have stated that the possibility of a “no deal Brexit” seems unlikely, such a scenario would have significant implications for both the EU and the UK.  In this e-update, we consider the impact of a “no deal Brexit” on data protection.  We will also issue updates in the coming weeks on the following topics:

  • State Aid and Competition Law; and
  • Intellectual Property Rights.
Impact of a “no deal Brexit” on data protection

Data protection has been one of the most talked about developments across the UK and EU this year. With the General Data Protection Regulation (GDPR) coming into force on 25 May 2018 and the UK enacting the Data Protection Act 2018, many are asking what else could happen with data protection legislation in the coming years?!

In the event of a “no deal” Brexit, there would be no immediate change insofar as our data protection standards are concerned, due to the existence of the Data Protection Act 2018, which would continue in force. It would be possible for the EU Withdrawal Act to make express provision for the GDPR to remain enforceable in UK law, however as the Data Protection Act 2018 implements the GDPR standard of data protection into UK law, this may not be required.

Additionally, given the similarity between the UK and the EU’s data protection laws (due to the GDPR and its direct applicability in all EU Member States), it has been confirmed by the Department for Digital, Culture, Media and Sport that data transfers from the UK to the EU would continue to be permissible, as the EU would be considered a safe country to transfer UK data- although this would be kept under review.

However, transfers of data from organisations in the EU to those in the UK could be more problematic. Action would need to be taken so that such personal data  transfers could continue post-Brexit.  As the UK would no longer be a member of the EU after 29 March 2019, the UK would be considered a “third-country” for data transfers, meaning that such transfers could not take place without there being “adequate measures” in place to protect the rights and freedoms of EU citizens.

The problems associated with transferring data from the EU to the UK could be resolved with an adequacy decision from the EU.  The EU currently has made a small number of adequacy decisions that allow data to be transferred to specific countries outside the EU (including Argentina, New Zealand, Switzerland and Canada).  The European Commission has indicated that it is prepared to make an adequacy decision in favour of the UK.  However, the official decision in this regard cannot be made until the UK becomes a third country upon departure from the EU. This leaves the question of what happens with personal data being transferred post-Brexit up until such a decision is made?

UK organisations that wish to continue receiving personal data from organisations in the EU following Brexit should identify an alternative legal basis for such transfers, such as adopting Standard Contractual Clauses – European Commission approved model clauses which allow the transfer of personal data outside the EU.  Whilst these model clauses have not been updated for GDPR they remain a valid way of transferring personal data outside the EU.

Conclusion

It is clear that a no-deal Brexit would have far-reaching ramifications, certainly as far as data protection is concerned.  Organisations which rely on data transfers to and from the EU should be aware of the implications arising out of such an outcome.  Pending the European Commission making an adequacy decision in respect of the UK, organisations should consider using the European Commission approved model clauses to preserve the free flow of personal data from the EU to the UK post-Brexit.   That may mean starting discussions with partners now to ensure that such arrangements are in place in good time.

This article was co-written by Charlotte Fleming.

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