Preparing for a No Deal Brexit
Posted on 9th August 2019 at 09:54
Government departments, including some in the National Health Service, are already repatriating their data - such as personal data about citizens - from places such as Ireland.
"It's not really an option just to ignore this and hope transfers to the UK go unnoticed," said Clare Sellars, a counsel on law firm Ropes & Gray's data protection team. "I suspect the regulators won't be that lenient - there's been a fairly long lead time to prepare."
Alternative arrangements include implementing binding corporate rules or signing contracts that include EU-approved clauses.
The latter option of implementing standard contractual clauses is for now "the simplest way to go, especially for most small and medium-sized enterprises." However, for large organisations, they can be costly to implement, smaller or medium-sized enterprises are likely to have fewer transfer needs.
However, this solution would also still be subject to legal uncertainty. While it is one of the most efficient alternatives to transferring commercial data outside of the EU, standard contractual clauses also face a legal challenge in a court case that could invalidate them as a transfer mechanism.
As a result, an EU company may opt to partner with an EU area firm instead of a UK-based company in order to avoid legal turmoil. Even in the case of a hard Brexit, the EU will nevertheless eventually explore a so-called "adequacy" decision for the UK. This would add the nation to an European whitelist of countries between the EU and which data can flow freely because their privacy laws are accepted as in line with Europe's.
While the UK currently implements the EU's GDPR rules, the adequacy decision process could still take years, with Britain's data-collection practices as part of its national security regime likely to come under heavy scrutiny.
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