UK organisations need to comply with the UK GDPR and continue to be subject to the EU GDPR where EU data is being processed, so there may be two versions of the GDPR to comply with for some personal data processing.
This article is taken from February's public matters newsletter. Click here to view more articles from this issue.
The transition period has ended. What does this mean for data protection law?
The UK has implemented the General Data Protection Regulation ("GDPR") directly into UK law through the European Union (Withdrawal) Act 2018 in a form as amended by the Data Protection, Privacy and Electronic Communications (Amendments Etc) (EU Exit) Regulations 2019 (likely to be referred to as the “UK GDPR”).
In addition, UK organisations will continue to be subject to the extra territorial provisions of the EU GDPR (Article 3(2)) where EU data is being processed. There may therefore be two versions of the GDPR to comply with for some personal data processing.
The UK exit deal includes an extension for personal data to flow freely between the European Economic Area ("EEA") and the UK for four months with an optional two month period of extension, so the EU has until the end of June 2021 to agree an adequacy decision.
The UK is free to change its privacy laws at any time but doing so would allow the EU to cancel the extension period or any adequacy decision.
The deal means that transfers of personal data from the EEA to the UK do not qualify as transfers to a third country. No additional transfer mechanism is required during the extension period, however it would be a sensible precaution for most UK businesses (and the position that the ICO also advises) to have the SCCs in place anyway if you are transferring personal data from the EU to the UK.
The requirement to appoint an EU representative does not appear to have been waived by the UK exit deal. CNIL, the French regulator, has issued a statement reminding UK businesses that they will be required to appoint an EU representative from 1 January 2021.
If your business regularly deals with personal data of individuals in the EU then Browne Jacobson can help you to get an EU representative in place. As your representative in the EU there are certain qualities that you are likely to want from an EU representative (and you’re likely to want a contract in place) we can help with that process.
The ICO will be the supervisory authority for the UK GDPR.
If your organisation is also established in the EU then you will have a lead supervisory authority in the EU jurisdiction where you is established (or if established in multiple EU jurisdictions then that will be determined according to European Data Protection Board guidance (“EDPB Guidance”). Bear in mind that this means you could now be fined by both the ICO and the EU lead supervisory authority.
If the organisation is not established in the EU but is offering goods or services or monitoring the behaviour of data subjects in the EU then it will be subject to the ICO and the supervisory authority in each jurisdiction. The ICO’s guidance is clear that “In theory, the retailer could be fined by the ICO and the supervisory authority in every EU and EEA state where customers have been affected.”
As set out in the EDPB Guidance, having an EU representative does not mean you are established in the EU for the purposes of qualifying for a lead supervisory authority. A UK organisation with no EU establishments and an EU representative in France could still be fined by each and any supervisory authority in jurisdictions where data subjects have been affected.
UK organisations will need to consider the drafting of their agreements, particularly the definitions of GDPR which will now need to appreciate the fact that there are two separate GDPRs.
Depending on the transfers of data involved you may need to revise existing contracts to include the SCCs and to amend any privacy notices to refer to the correct legislation and representative.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
The Digital Services Act (the “DSA”) has today (27 October) been given the go-ahead by the EU Council and will enter into force by early 2024.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.