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Brexit impact on privacy

By Chantal Bernier and Anca Sattler
February 6, 2020
  • Privacy Rights
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On Friday, January 31, 2020, the United Kingdom (UK) left the European Union (EU) after 47 years as part of the union.

While the UK has ceased to be part of the EU when the clock struck midnight in Brussels, the UK and EU have agreed to a transition period until the end of 2020, to allow the UK to continue its current relationship with the EU, while future trading relationships are negotiated.

As part of this transition period, the UK’s Information Commissioner Office has clarified that the EU’s General Data Protection Regulations (GDPR) will remain in effect until the end of 2020.

No changes required at this time, but …

If you or your clients offer goods or services in the UK, and process personal data of UK residents, the GDPR will continue to apply to the treatment and safeguarding of that personal data.

Similarly, the GDPR still applies, and data protection agreements (DPA) are still required as part of an agreement with organizations that process personal data of individuals from the UK.

The UK’s Data Protection Act of 2018 incorporates the GDPR into UK law. It remains to be seen what status the EU will give to personal data transfers to the UK: Will the EU allow such transfers or will it apply the same conditions as for the rest of the world?

Adequacy status for Canada

At the time of this writing, the EU Commission considered Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) adequate to receive and process personal data of EU residents in Canada without further conditions under the GDPR. However, this adequacy status is up for review in 2020 by the EU Commission.  

Even if Canada retains its adequacy status with the EU, it is not clear what regime the UK will adopt in relation to cross-border personal data flows. While it is fair to expect that the UK will look favourably at facilitating cross-border data flows towards North America in support of new trade agreements, UK businesses have recently started to show concern with the UK’s direction in that regard. Indeed, in the months leading up to the UK leaving the EU, organizations from the UK have started to ask for further assurances related to data protection from entities outside the UK, including Canadian businesses processing information of UK residents.

With all these uncertainties at play this year, do not be surprised if a UK business partner asks you to sign the Standard Contractual Clauses with respect to personal data of UK residents being stored or processed in Canada. 

What to expect

Following the transition period, there may be areas of uncertainty around the data protection landscape in the UK. It is likely, however, that the UK will keep its GDPR-based data protection legislation to address any concerns about the flow of personal data between the EU and the UK, and keep its flexibility in negotiating free trade agreements with North America.

Please contact a member of our Privacy and Cybersecurity group if you have any questions on the impact of Brexit and the privacy compliance obligations.

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Chantal Bernier

About Chantal Bernier

Chantal Bernier leads Dentons’ Canadian Privacy and Cybersecurity practice group. She is also a member of the Firm’s Government Affairs and Public Policy group. Chantal advises leading-edge national and international companies as they expand into Canada and Europe, enter the e-commerce space, adopt data analytics and roll out data-based market initiatives. Her clients include ad tech companies, financial institutions, biotech companies, data analytics firms and government institutions.

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Anca Sattler

About Anca Sattler

Anca Sattler is a senior associate at Dentons, working with three of the Firm’s high-profile practice groups: International Trade, Privacy and Security, and Litigation and Dispute Resolution. Based in Ottawa, Anca has extensive experience in international trade and investment, privacy and data protection, as well as commercial litigation. She has lived in Canada, the US and Europe, and can work in five languages, enabling her to apply a true global perspective to her work.

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