European Union: UK Publishes Regulations To Guide Companies On The Post-Brexit Data Protection Regime

The UK Government has published the Data Protection, Privacy and Electronic Communications Regulations 2019 ("Regulations") in order to ensure that the data protection regime will function smoothly once the UK decides on the future of Brexit.

The Regulations amend the EU General Data Protection Regulation ("GDPR"), such that it can be incorporated into UK domestic law. The Regulations will come into effect on either 30 March 2019, if there is a 'no deal' Brexit; or at the end of the transition period (1 January 2021 at the earliest), if the UK and the EU approve the draft Withdrawal Agreement, which is currently under discussion in the UK Parliament.

The data protection standards set by the UK under the Regulations ("UK GDPR"), as well as in the GDPR, are essentially the same. The UK GDPR will apply to any controllers and processors established in the UK and to those outside of the UK, offering goods and services to data subjects in the UK or monitoring the behavior of data subjects in the UK.

Key points include the fact that companies subject to the UK GDPR may need to appoint a UK representative; and that UK's ICO will make its own adequacy decisions with respect to third countries (including EU Member States) in order to permit the transfer of personal data.

On this topic, the European Data Protection Board ("EDPB") also released an information note addressed to commercial entities and public authorities on data transfers under the GDPR in the event of a 'no-deal' Brexit. According to the EDPB, in the absence of an agreement between the EU and the UK, the UK will become a third country on 30 March 2019. Consequently, the transfer of personal data from the EEA to the UK will have to be based on data sharing agreements, codes of conduct or other specific transfer instruments.

As regards data transfers from the UK to the EEA, according to the UK Government the current practice, which permits personal data to flow freely from the UK to the EEA, will continue in the event of a 'no-deal' Brexit.

We will be happy to provide further advice on how to adapt to UK's new Exit Regulations and other points of attention.

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