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Data Protection after Brexit

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Despite Brexit, certain aspects of EU law are here to stay and GDPR is one of them. Imaginatively rebranded as UK GDPR, the key elements remain the same. However, subtle differences may mean some organisations have to make changes.

Do you need to comply with just the UK GDPR & Data Protection Act 2018 or with the EU GDPR as well?

You will need to comply with the UK GDPR and the DPA 2018 if your organisation:

  • is based in the UK; or
  • is based elsewhere but processes data about UK data subjects.

You will need to comply with the EU GDPR If your organisation:

  • has personal data from EU data subjects which it will continue to process; or
  • operates and has establishments in the EU.

Therefore, your organisation could be subject to both UK GDPR/DPA 2018 and EU GDPR.

International Transfers of Personal Data

The UK has already determined that transfers of personal data from the UK to the EU are adequately protected by the EU. However, the EU is still considering whether the UK’s data protection regime is ‘adequate’. If there is no adequacy decision, additional protective measures will be required.

Earlier this year, interim bridging measures for transmission of personal data to the UK were agreed upon. So, compliant personal data transfers from the EU to the UK can continue without additional safeguards. This gives organisations further respite to consider next steps.

It would be sensible to start preparing now in case an adequacy decision is not forthcoming. The most common approach is by entering into a contract with entities in the EU adopting Standard Contractual Clauses (SCC’s). These are rules pre-approved by the EU which cover the transfer of data to and from your business. Existing SCCs continue to be valid for transfers from the UK to non-EU countries.

Appointing an EU Representative

Organisations in the UK which act as controller or processor of EU individuals’ data may need to appoint a representative in the EU to comply with EU GDPR. Likewise, an EU-based controller or processor may have to appoint a representative in the UK if it is subject to the UK GDPR.

‘Frozen GDPR’

Identify all overseas data you collected before the end of 2020 and keep a compliance record. New data collected after this point will mostly come under the UK rules. But data collected before 31 December 2020 will continue to be subject to the EU GDPR as it was on 31 December 2020 unless an adequacy decision is granted. At the moment standards are generally the same. But if the UK regime diverges from the EU regime, you will need to be able to identify data that is subject to the old rules.

Changes to Privacy Policies

Some changes may be required in referencing the relevant legislation, addressing transfers of data between the UK and the EU and referring to your EU representative.

Data Protection Impact Assessments (DPIA’s)/Records of Processing

Any DPIA’s may need a review to address international transfers (including to and from the EU). Similarly records of processing activities may need to be reviewed to incorporate international transfers and EU Representatives.

Contracts

As with privacy policies, contracts may need reviewing to ensure references to data protection cover the new UK regime. Organisations may need to review provisions dealing with international transfers and anticipate the need to incorporate SCC’s.

For information on UK GDPR and what your business needs to do speak to our Corporate and Commercial Solicitors on 0161 785 3500 or email at enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

Written by Keith Kennedy

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