Is there anyone out there who still believes that Brexit will negate UK businesses from having to comply with the GDPR? Well, as long as there are also Flat Earthers and Young Earth Creationists I’d say that there’s enough ignorance out there to ensure that there are plenty of them.
The Brexit vote debacle itself showed just how pervasive ignorance is in the UK for example, as evidenced by the number of people who Googled “What is the EU?” the day after the vote. Stupidity I can forgive, it’s not a choice, ignorance is. Or as Harlan Ellison puts it so perfectly:
“You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.”
And when a weapons-grade plum (thank you @sueperkins) like Donald Trump is in favour of a decision, you know you’ve f&%$ed up.
But enough judgement, the answer to whether or not UK businesses will need to comply with the GDPR is written in the Regulation itself. Anyone who has actually read it probably has the words “third country” floating around in their heads right about now. Why? Because post-Brexit that’s exactly what the UK will be to the EU; a third country.
Every country in the EU has signed up to adopt the GDPR into their individual national laws in order to enforce it in the exact same way. From the creation of supervisory authorities with identical tasks and powers, to approved codes of conduct, to the imposition of penalties, every EU country ‘trusts’ every other EU country by default. Further, if for any reason two countries disagree on something, the Board can step in and sort it out per Articles 63 (Consistency mechanism) and 65 (Dispute resolution by the Board).
None of this will apply to third countries, who will need to demonstrate what the GDPR calls an “adequate level of data protection” in order to enjoy the freedoms of data processing and movement that EU countries will receive automatically. This is spelled out very clearly in Recital 103:
The Commission may decide with effect for the entire Union that a third country, a territory or specified sector within a third country, or an international organisation, offers an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third country or international organisation which is considered to provide such level of protection. In such cases, transfers of personal data to that third country or international organisation may take place without the need to obtain any further authorisation. The Commission may also decide, having given notice and a full statement setting out the reasons to the third country or international organisation, to revoke such a decision.
In other words, the Commission can, as long as the third country has met certain criteria, give blanket approval for that country to do business as usual within the EU.
Simple logic therefore dictates, that the criteria must fully comply with the GDPR, and every business must meet the GDPR baselines in their entirety.
The criteria are broken out in Article 45(2) [edited for length]:
When assessing the adequacy of the level of protection, the Commission shall, in particular, take account of the following elements:
(a) the rule of law, respect for human rights and fundamental freedoms, relevant legislation, both general and sectoral [edited]
(b) the existence and effective functioning of one or more independent supervisory authorities in the third country or to which an international organisation is subject [edited]
(c) the international commitments the third country or international organisation concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems, in particular in relation to the protection of personal data.
In other words, as long as ALL of the laws, judicial systems, supervisory authorities, contractual obligations etc. are at or above the levels mandated by the GDPR, that third country is good to go.
Here in the UK this will hopefully not be an issue. The ICO is the supervisory authority and the upcoming amendments to the Data Protection Act should more than cover the GDPR adequacy requirement. So as long as UK businesses comply fully with the DPA, they should not have to provide any further evidence of compliance to EU countries.
However, there are many who believe that the because of things like the Investigatory Powers Act 2016 (a.k.a. Snooper’s Charter), that the UK is at serious risk of not qualifying for the adequacy decision. We’ll have to see how it goes.
Bottom line here is that if you are sitting on your arse waiting for the ICO to tell you what to do, you are setting yourself for some very unnecessary pain. The initial preparations for GDPR/DPA are as simple as they are obvious, and well within the reach of every organisation out there. Whether or not your country receives an adequacy decision, your organisation will need to comply. Nothing has changed.
You do not need to understand your legal basis for processing in order to perform either a data discovery exercise or a business process mapping, both of which you should be doing already. I’d get on with it if I were you.
It’s not doing the wrong thing unintentionally that will piss the supervisory authorities off the most, it’s doing nothing at all.
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