What to do in a No-Deal-Brexit Scenario

What happens to your GDPR Compliance Program in the event that the UK leaves the EU without striking an agreement with the EU.   Here is a summary of actions you will likely need to take, followed by a more detailed explanation. 

  1. Revise your standard contractual clauses for transfers from the EU to the UK
  2. Ensure you appoint an Article 27 representative in both the UK and the EU.  
  3. Register with a supervisory authority in both the UK and the EU
  4. Make revisions to your privacy policy to refer to both the UK and EU laws, identifies the supervisory authority and the company’s representative in both the UK and the EU
  5. Review DPIAs to ensure compliance with both sets of laws. 

According to the ICO (the UK Data Privacy Supervisory Authority), the UK government intends to incorporate the GDPR directly into UK law upon Brexit (UK GDPR).  The UK GDPR together with the Data Protection Act 2018 will comprise the UK’s data protection scheme. Existing GDPR compliance programs must continue to apply those protections to personal data of UK data subjects. Nevertheless, data controllers and processors will need to make changes to their data privacy and protection practices before a No Deal Brexit. In particular, companies will need to make adjustments with regard to the following:

Data Transfers

Most likely the most burdensome issue. Since the European Commission determines whether a country outside the EU offers an adequate level of data protection, transfers of personal data to such countries are not automatically deemed “adequate.”  Thus, until there has been an adequacy determination, transfers of personal data between the EU and the UK can be made only subject to certain protections, such as Standard Contractual Clauses (SCCs).

The length of time it will take to obtain an adequacy determination from the European Commission is unknown, and there is no assurance that such a decision will be made quickly.  Be prepared to implement interim safeguards and understand how personal data flows from within and out of the UK. Identify which data transfers will be problematic.  Adopt appropriate transfer mechanisms.

Transfers from the EU to the UK. If your company transfers EU personal data to the UK, you will need to ensure adequate safeguards are in place or that one of the exceptions in GDPR Article 49 applies. For some companies, the only available data transfer mechanism will be SCCs. Identify all such data transfers now and begin the process of entering into SCCs with entities to which your company transfers data, such as vendors, customers, and even internal corporate affiliates, so these agreements are in place before Brexit. 

Transfers from the UK to the EU. If your company transfers personal data from the UK to the EU, the ICO has indicated that post-Brexit transfers from the UK to the EU will not be restricted.  Although no specific action is required concerning these transfers, best practice suggests that you keep these transfers under review.   

Transfers from the UK to the countries outside the EU. There will not be changes to the rules that govern these transfers, as they will have already been in place. It is expected that the UK government will confirm existing adequacy decisions and the SCCs.

Article 27 Representatives

By now you will have appointed a data protection officer (DPO), whether internally or engaged an external one.  This is required, with some exception, by the GDPR.  If your DPO is located in the UK, that DPO will only be valid for compliance within the UK.  Conversely, if your DPO is situated in the EU, an additional DPO must be appointed in the UK.  As a result, to remain in compliance with both the UK and the EU companies will need to appoint two DPOs one in the UK and one in the EU.

Lead Supervisory Authority

Under the GDPR, companies with a physical presence in the EU, and that engage in “cross-border processing,” are permitted, but not required, to choose a lead supervisory authority (LSA). The LSA then coordinates “cross-border processing” issues across the EU and has primary responsibility for conducting investigations into the company’s data processing activities and responding to its compliance inquiries. When choosing an LSA, it should be where the company’s headquarter is located, or if no headquarters, then the place where decisions about the purpose and means of processing are made. Following Brexit, companies whose “main establishment” is in the UK will no longer be able to designate the ICO as their LSA. Moreover, unless those companies physically move the operations where their decisions about the processing of personal data are made to an EU country, they may lose the ability to designate an LSA altogether, leaving them subject to regulation by multiple EU data protection authorities.

Data Protection Officers

The ICO’s guidance states that Data Protection Officers (DPOs) appointed by a company may continue in that role and combine their UK responsibilities with ongoing EU responsibilities, so long as “they have expert knowledge of both UK data protection law and the EU regime and are ‘easily accessible’ from both locations.” Because the UK GDPR will mirror the GDPR, your DPO who already possesses knowledge of the GDPR will also necessarily possess knowledge of the UK GDPR. Your DPO should also possess knowledge of the Data Protection Act 2018, which took effect at the same time as the GDPR.

Privacy Notices

Although, information required in your privacy notice is unlikely to change references to EU law and the identification and contact information for the DPO and the LSA may need to be changed.  If your U.S.-based company participates in the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks you will need to update your privacy notice by March 29, 2019, to affirm that your commitment to the Privacy Shield extends to UK personal data. 

Article 30 Records of Processing

Changes to the information you are required to document are not likely. You may need to review certain of your processing activities involving data transfers to the UK and update your records accordingly. For example, you may now have to classify certain personal data as being subject to international transfer rules and document under which adequate safeguards it was transferred.

Data Protection Impact Assessments

Existing assessments may need to be reviewed to determine whether they cover international data flows that become restricted after Brexit.

Let us help you with this hurdle to GDPR compliance.

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