The decision made by the British people in the 23 June
2016 referendum has multiple consequences, many of them legal. Some have already been addressed, but the
issue of what Brexit could mean for European citizens’ privacy and data protection
rights has been pushed to the background.
The regulatory framework for data protection in the
European Union conferred total freedom of circulation on data within the 28
Member States. The United Kingdom’s exit
from the EU, and consequently from that legislative environment, will therefore
mean that its citizens will be considered as established in a third country, and
issues such as those currently existing with the United States will have to be
contended with. Basically, sending data
from any EU country to the UK will constitute an international data transfer, with
the legal effects that this entails.
Obviously, given the importance of massive data
processing for a company from any sector, the UK is not going to remain aloof
from its former fellow Member States, since not interacting with the EU in this
field would leave it out of the game in a sphere that is vitally important for
the economy.
This situation obviously gives rise to uncertainty -which
will have to be cleared up by the British government in the coming months-
concerning the decision to be made on the subject of data protection in the
island State.
It is first of all necessary to understand the UK’s
legislative situation regarding this subject. The law currently applicable to national data
protection is the UK Data Protection Act of 1998, a product of the
transposition of the 1995 EU Data Protection Directive establishing the
fundamental concepts and principles underlying European data protection laws
throughout Europe. The UK Electronic Communications Act is also significant and regulates electronic
signature-related issues stemming from the 1999 Directive and electronic
communications and transactions, and is supported by the texts transposing the
2000 E-Commerce Directive. The current
regulatory framework is therefore not so far removed from the one existing in
the other 27 countries thanks to the transposition of several directives.
At first glance, the foreseeable reaction is that the
UK will be considered as a country with a secure data protection level, and
maintaining the status quo should not be overly problematic, given that UK laws
have been adapted to European legislation and are very close to those of the
other 27 States. This obviously depends
on a number of factors. First of all,
the British government is changing, and we do not know what the intentions of
the next inhabitants of 10 Downing Street will be. It is therefore feasible to believe that
there could be a change in legislative policy concerning data protection, and
the ties that bind the country to the EU will therefore be broken in a more
drastic way. Another variable to be
considered is that declaring the UK as a country with an adequate level of
protection is contingent upon the European Commission’s approval, which has to
be carried out by means of a regulated procedure, where it is necessary to
study numerous issues such as the functioning of a supervisory authority,
case-law on the subject and the country’s international commitments, as well as
the fact that the agreement has to be revised every four years.
Supposing that the second option, which is more
realistic and conservative, is the one that is effectively followed, the
situation would not be exempt from problems. The need for the aforementioned declaration by
the Commission could mean that in the period of time between the actual
departure from the EU and approval of the agreement, the UK will be considered
a third country and any transfers made to it will be viewed as international
data transfers. An indefinite time
period would open up, in which companies from both sides would have to regulate
their operations to comply with transitional legislation with an undetermined
expiry date. In short, too many changes
and requirements for a relatively short space of time. Added to that is the fact that the British
State’s laws and practices on the subject of data protection will be monitored
closely by EU regulators and subjected to detailed scrutiny.
It should be borne in mind that there are two sides to
this dispute, and so the European Union’s reaction has to be assessed. Since it
will be for the Commission to evaluate an agreement declaring the UK a kind of
“safe harbour” in the event that the exit actually comes about, the European
institution may place some tremendously demanding standards on its ex-member. Europe therefore has the power to subject
British law to a comprehensive analysis that will reduce its negotiating
leverage and force it to submit to iron-fisted control from Brussels so as not
to end up in legislative limbo.
This declaration as a country with an adequate
protection level will only be necessary if the UK, on abandoning the EU,
decides not to be part of the European Economic Area. This is the option followed by the non-EEA
member Switzerland. Since 2000, there
has been an agreement with the Helvetian country, guaranteeing an adequate
level of protection for the treatment of personal data in that State, as in the
case of other territories such as the Isle of Man, Uruguay and New Zealand. In the event that the British opt to adhere
to the EEA, European data protection laws will apply to them, and so sending
data to the British Isles will not constitute an international data transfer.
Seeing that the option that is, let us say, peaceful,
conservative, or close to the EU, is actually much more problematic than it
initially appears, it cannot be ruled out that the incoming administration
could make a much more drastic move and reform existing data protection laws to
distance them from European legislation, over which there had been disagreement
during the approval process, thus adopting a position that is more in keeping
with the less protectionist principles of the Anglo-Saxon world. Since
it seems counterproductive for them to isolate themselves in such a way, this
option would appear to be less likely, although it can always be argued that if
the EU has reached an agreement with the United States, it could also reach one
with Great Britain in such a case.
In that regard, Christopher Graham from the
Information Commissioner’s Office stated that “international consistency around
data protection laws and rights is crucial both to businesses and organisations
and to consumers and citizens”, and that “we will be speaking to government to
present our view that reform of the UK law remains necessary”. It would therefore seem that the country’s
relevant institutions in respect of this issue advocate maintaining the unity
of EU and UK laws.
Regardless of which option is followed, the
consequences are complex to say the least.
The exit is based on Article 50 of the EU Treaty, according to which the
withdrawing State and the Union will have to negotiate a withdrawal agreement,
setting a date on which the treaties will cease to apply to the former. Where no such date has been established, the
treaties will cease to apply two years after the European Council has been
notified of the State’s intention to withdraw, a time period which can be
extended. This term is vitally
important, given that the EU General Data Protection Regulation (GDPR) will be
coming into effect on 25 May 2018, and so it will more than likely apply to the
UK for a certain period of time since a withdrawal agreement has yet to be
reached. Things will therefore get messy:
during the negotiation of the exit deal and the time period provided for same,
the 1998 law stemming from an EU directive will continue to apply until May
2018, when the withdrawal will almost certainly not yet be effective, and so
the GDPR will start to operate until the date on which the treaties will cease
to apply is fixed. Also, once the
Regulation comes into force, all companies and organisations, regardless of
where they are based, will be required to comply with its provisions if they
process EU citizens’ data. Therefore,
when the time comes for the Regulation to cease to apply, a large number of
British corporations will have to abide by its provisions in respect of a significant
part of their activities.
We can confidently predict that British law will
continue in line with European law for a considerable period of time, and so
the aforementioned split will be a medium-term decision. The application of the Regulation in the UK
will be a reality, and so for a while there will be calm as regards data
protection on the continent. In fact,
the UK, just like the other EU Member States, will have to transpose the
recently approved (May) Council Directive concerning measures to ensure a high
common level of network and information security across the Union into its
domestic law; in other words, its legislation will keep pace with the rest of
the Union for the time being.
Author: Martín Bello Castro
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