Data transfer red tape awaits as new Brexit blitz begins

brexitThe UK Government is attempting to breath new life into its marketing activity to promote what it claims will be the joys of post-Brexit Britain, with yet another round of catchphrases but also the prospect of more red tape for firms which need to carry out data transfers.

The activity kicks off tonight (Monday) with a TV campaign airing on ITV during Coronation Street and includes radio, out-of-home, digital and print, as well as SMS and webinars, all designed to direct businesses to the Government website to find out more about how to adapt to a post-Brexit economy.

Created by MullenLowe under the banner “Check, change, go” the campaign calls on businesses to “get moving” and “seize new opportunities”. Addressing a need to “plan ahead” and check Government guidelines for changes following Brexit, the ad calls on companies to “set our course as we transition to our new relationship” with the EU.

However, just like last year’s much derided “Get ready for Brexit”, devised by Engine, details of the “new opportunities” are few and far between, as negotiations with the EU are still ongoing.

And any hope that the UK will achieve the highly-prized “adequacy” decision, which will permit seamless data transfers between the EU and the UK are still hanging in the balance.

There is still time for an adequacy decision to be reached as part of the negotiations during the transition period, but the fastest the Commission has ever adopted such an agreement is 18 months, with the process sometimes taking several years.

In the meantime, the Government’s advice remains the same, pointing firms to the Information Commissioner’s Office website, where they are advised that, from January 1 2021, they will need to set up so-called “standard contractual clauses” if they want to receive data back from companies operating in the EU. This is likely to entail even more “red tape”, the very thing that Brexit was supposed to banish.

There are also other changes to data protection laws.

Following the transition period, GDPR data protection law will no longer apply in the UK. According to the ICO, the British Government intends to incorporate GDPR into UK law from the end of the transition period.

“UK GDPR” will operate alongside the existing legislative rules contained in the Data Protection Act 2018. Therefore, the rules set out in GDPR for the protection of personal data, the rights of data subjects and the principle of consent will continue to apply in the UK.

However, while there may be initial legal alignment at the end of the transition period, a divergence in data protection rules seems inevitable as the UK will no longer be subject to decisions of the two primary harmonising EU authorities on data protection, the EU Court of Justice and the European Data Protection Board (EDPB).

The UK Government is pressing for the ICO to retain its place on the EDPB but, so far at least, Brussels has refused.

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