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What does BREXIT mean for data protection?

On 23 June 2016, the UK is holding a referendum as to whether to stay in the European Union or leave it. But what does a BREXIT (a British Exit from the EU) mean for data protection?

Most of the UK law on data protection comes from the EU. The UK Data Protection Act 1998 and the Privacy and Electronic Communications Regulations both implement overarching EU law. So you might think this is like “unplugging” the source of data privacy law and therefore switching it off? But UK data protection law, in fact, pre-dates the European data protection directives. In fact, the UK was a signatory to the 1981 Convention (the forerunner of modern data protection law). Enough history!

What could happen in theory?

The UK parliament could reduce (or repeal) the Data Protection Act. The Courts could decide to no longer follow EU case law. Most importantly, the UK could choose not to implement the General Data Protection Regulation (GDPR). This, as we all know, is a wholesale upgrade to EU data protection law. GDPR includes new penalties of up to 4% of worldwide turnover, new legal duties to notify of data breaches and requirements to implement an accountability framework of policies and procedures.

What will happen in practice?

The UK could leave the EU and join the European Economic Area. In this case, it would be legally obliged to maintain data protection law on an equivalent footing to the EU. So all the current law would stay. GDPR would also be a requirement.

Theoretically, the UK could go out on its own. However this would make it a non-adequate jurisdiction for international data transfers. This means it cannot receive personal data freely from the EU. It could ask the EU for an “adequacy decision” but its anyone’s guess as to how long that would take. It could be a difficult negotiation (…think about the recent story of Snowden, Schrems and the proposed Privacy Shield, which is still being worked on).

No doubt there would be huge pressure on the UK to fall into line (dare I say it) with EU-style data protection law anyway. Otherwise, this could be a significant drag on international trade.

Finally, there is the practical argument that we actually need data protection law to underpin consumer trust in the digital economy. So let’s not trash it.

For what it’s worth, the ICO say that the UK needs clear and effective data protection law regardless of whether it remains in the EU. They don’t expect to be packing their bags.

Whatever the uncertainty on a possible UK exit, the issue will, at least, be resolved in a little over 7 days.

What does BREXIT mean for data protection?

Safe Harbor Decision today!

Today, the Court of Justice of the European Union (CJEU) handed down its ruling in relation to the Schrems case. As you will have heard, the Court decided that local DPAs should be entitled to investigate matters (regardless of there being a Commission Decision applicable) and, more importantly, that the Commission Decision on Safe Harbor is, in fact, invalid.

DPA rights to investigate

We had all assumed that if a data transfer was subject to Safe Harbor then that was it. You would not have expected a local DPA to investigate Safe Harbor as that was an official decision and it should be up to the Commission to investigate or upgrade it as required.  Then came Snowden. That put Safe Harbor under the microscopic of course.

As a result of Snowden revelations, the Commission has been negotiating with the US for an upgrade to the privacy principles and FAQs. The Court, however, decided that if you read the Data Protection Directive (the famous Article 25 in particular) together with the EU Charter of Fundamental Rights, this must mean that DPAs can investigate Safe Harbor data exports.

In one sense, this turns DPAs into quasi-judicial bodies. More generally, it reflects the two key changes influencing the Court’s thinking here: (i) the Snowden revelations; and (ii) the higher standards imposed by the Charter. Neither of these factors were, presumably, in the Commission’s “corporate mind” when the Safe Harbor Decision was published, way back in 2000. The Charter, in particular, is featuring more frequently in EU data protection case law.

Safe Harbor decision

The Court raised a number of criticisms of the Commission’s original Decision. The Court highlighted that:

  • no consideration had been given to domestic US law as to whether it provided adequate protection for data;
  • the carve out for access to data for national security, crime prevention and other purposes was too broad; and
  • there was no appropriate remedy for EU citizens.

In other words, there were architectural defects in the Safe Harbor regime.  These concerns were brought to light by the surveillance revelations of Edward Snowden.

Should we panic?

No!  However, it is time to think carefully about putting alternatives to Safe Harbor in place (e.g. model contracts or BCRs).  The ICO accepts that this will take time.

Interestingly, the Commission was at pains to point out in their press conference this afternoon that they value international trade and that data flows with the US should continue.  So this is not about “pulling up the digital drawbridge”.  In particular, they have indicated that there will be guidance published to ensure business has certainty and clarity going forward.  They were also keen to point out that the “Safe Harbor 2.0” currently being negotiated is well advanced but that they need a little more time to sort out the national security issue.  Let’s wait and see.  The sooner the better

We are publishing a fuller analysis of the decision tomorrow.  Please contact me if you would like a copy.

Safe Harbor Decision today!

Schrems v. Irish Data Protection Commissioner: some further thoughts

As the dust begins to settle after the headline-grabbing Advocate General opinion in the Schrems v. Irish Data Protection Commissioner it may be worth considering some of the other potential implications arising from that opinion.

Of course, the AG opinion is not the final word on this matter. That will rest with the judgement of the Court of Justice of the European Union (CJEU). And the CJEU is not bound to follow this opinion. So there may well be life left in Safe Harbor (or Safe Harbor 2.0) yet. But if the CJEU follows suit, what else could this mean? (more…)

Schrems v. Irish Data Protection Commissioner: some further thoughts

Subject Access Request risk: limits in sight?

A recent High Court case took a very robust stance on the issue of DSARs (Data Subject Access Requests) being used to fuel litigation.

An individual can make a DSAR to request access to any of his/her personal information. In Dawson-Damer v Taylor Wessing (2015), the Court refused to order compliance with a DSAR against the law firm. The real purpose of the request was to obtain access to documents and information to assist with the applicants’ ongoing litigation. “Context is everything”, said Counsel for Taylor Wessing. There was no suggestion that the applicants wanted to use the DSAR to check the accuracy of the personal data held about them. The Judge was of the opinion that the DSAR would not have been made had it not been for the legal proceedings. This, in light of previous case law (Durant v FSA), was clearly not a proper purpose, he said.

Of course, this doesn’t mean that the ICO takes this view (we know they don’t!). And individuals are still  free to complain to the ICO, as well as to the Court, for breaches of DSAR provisions. However, it will be interesting to see if in due course the ICO adjusts its approach. That being said, the Judge himself indicated that the Court of Appeal, where the case is going next, may take a different viewpoint. Watch this space!

Subject Access Request risk: limits in sight?