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UK data protection standards to be deemed adequate by the EU

The EU agrees that British data protection standards are sufficient to receive an adequacy decision before the end of the month.

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There is only a fortnight to go before the expiry of the current grace period that allows personal data to continue to flow between the UK and the EEA as it did before the end of the Brexit transition period. However, EU member states have now agreed that British data protection standards are sufficiently high for the UK to receive an adequacy decision in time to enable these data flows to continue after the end of the month.

This news will be a relief to businesses and other organisations around the world, which otherwise would have had to embark on an expensive, time-consuming, and burdensome recalibration of their cross-border data flows. It had been estimated that the British economy could have lost up to £85 billion had no adequacy decision been granted. Despite the current alignment between the UK and the EU with regard to data protection, the approval of EU member states had not been a foregone conclusion: in February, for example, the European Parliament’s LIBE Committee issued a non-binding opinion that the UK should not be granted an adequacy decision due to national security concerns.

The backing of the member states for the UK to receive an adequacy decision, however, means that the European Commission will shortly adopt two adequacy decisions to allow continued data flows between the UK and the EEA. Effectively, the UK will join a select list of non-EEA ‘third countries’ to which EU-regulated personal data can continue to flow without further restrictions. Other countries on this list include (among others) Argentina, Israel, New Zealand, Switzerland, and Japan. In a reciprocal move, the UK has also confirmed that personal data can also continue to be transferred to the EEA as previously.

Data controllers and processors should be aware, however, that the position is not quite the same as it had been when the UK was an EU member state. Adequacy decisions are not permanent and have to be renewed every four years. Any renewal of the UK’s adequacy status in 2025 will depend on whether the UK’s data protection regime aligns with the EU’s, which is by no means certain given the enthusiasm from some quarters of the UK government to diverge from the EU position in the near future. In particular, the adequacy of the UK is partially based on Britain’s adherence to the European Convention of Human Rights and its submission to the jurisdiction of the European Court of Human Rights. If, as some ministers have suggested, the UK’s human rights regime is altered in such a way as not to be consistent with these, then there remains a risk that the UK will lose this newly gained adequacy status.

Moreover, irrespective of the adequacy decision, the UK’s withdrawal from the EU has also entailed additional challenges for business in respect of data protection: for example, UK businesses that have EEA-based customers must now appoint an EU data protection representative, while companies established in the EU must similarly appoint a UK representative if they process the personal data of individuals resident in the UK.

For now, though, the approval of EU member states of the adequacy of the UK’s data protection regime is welcome, particularly at a time when data transfers are instrumental in facilitating research in the fight against COVID-19.

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Raj Shah

Senior Associate

raj.shah@collyerbristow.com