United States: "No Deal" Brexit May Bring Practical Problems For Privacy And Data Protection

With a "No Deal" Brexit seeming more likely than ever after the UK Parliament voted down a proposed deal in January 2019, concerns are rapidly multiplying about the effects of such a withdrawal from the EU for organizations doing business in the UK, and how those organizations will address numerous practical issues, privacy and data protection among them.

In recently released updates to its post-No-Deal Brexit guidance, the UK's Information Commissioner's Office (ICO) clarifies several privacy-related implications and addresses some common concerns while urging organizations to start preparing now, before the looming March 29, 2019, effective date of a No Deal Brexit.

Will the GDPR Still Apply to Personal Data of UK Data Subjects After a No-Deal Brexit?

According to the ICO, the UK government intends to bring the General Data Protection Regulation (GDPR) directly into UK law upon Brexit (referred to herein as the UK GDPR), to sit alongside the Data Protection Act 2018 as part of the UK's data protection scheme. Therefore, organizations that have implemented GDPR compliance programs should continue to apply those protections to personal data of UK individuals. Despite this continuity, however, the ICO guidance makes clear that data controllers and processors will still need to make significant changes to their data privacy and protection practices before a No Deal Brexit. In particular, organizations will have to address the issues discussed below.

Data Transfers

Data transfers are likely to be the most challenging and burdensome issue that will arise from a No Deal Brexit. Because the European Commission has the power to determine whether a country outside the EU offers an adequate level of data protection, transfers of personal data to countries not deemed "adequate" can be made only subject to certain protections, such as Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs). (Transfers from the European Economic Area (EEA) to the U.S. can also be made subject to the EU-US Privacy Shield; transfers from the U.S. to either the UK or the EEA do not require safeguards.) Although the UK intends to seek an adequacy determination from the European Commission, there is no assurance that such a determination will be forthcoming; even if the UK is eventually deemed to be an adequate jurisdiction, the process may be lengthy. To prepare to implement appropriate safeguards, organizations will first have to understand their data flows and whether they carry out any of the following personal data transfers: (1) from the EEA to the UK, (2) from the UK to the EEA and (3) from the UK to countries outside the EEA. They will then need to adopt appropriate transfer mechanisms.

Transfers from the EEA to the UK. If your organization transfers EEA personal data to the UK, you will need to make sure that there are adequate safeguards in place or that one of the exceptions in GDPR Article 49 applies. For many organizations, the only available data transfer mechanism will be SCCs. You should begin identifying all such data transfers now, and begin the process of entering into SCCs with entities to which your organization transfers data, such as vendors, customers and even internal corporate affiliates, so these agreements are in place before Brexit.

For large multinational organizations that use BCRs as their data transfer mechanism, the ICO guidance indicates that BCRs already in place are likely to permit the transfer from the EEA to the UK, provided that they have been properly updated to show the UK as a third country, although this guidance has not been confirmed by the European Data Protection Board (EDPB).

Transfers from the UK to the EEA. If your organization transfers personal data from the UK to the EEA, the UK government has stated that post-Brexit transfers from the UK to the EEA will not be restricted; however, such transfers will remain under review. No additional action is required at this time with respect to such transfers.

Transfers from the UK to the countries outside the EEA. The ICO's guidance regarding transfers from the UK to countries outside the EEA indicates that the rules will likely not change much. In particular, the ICO expects the UK government to confirm that the UK will accept existing adequacy decisions and European Commission-approved SCCs and BCRs.

Article 27 Representatives

The GDPR requires, subject to certain exceptions, that any controller or processor not established in the EU must appoint a legal representative within the EU. The ICO has issued clear guidance that after a No Deal Brexit, the UK GDPR will require that a controller or processor not established in the UK also appoint a UK representative. As a result, organizations may have to appoint two representatives – one in the UK if they are subject to the UK GDPR but not established in the UK, and another in the EEA if they are subject to the GDPR but not established in the EEA.

Lead Supervisory Authority

Under the GDPR, organizations with at least one establishment (i.e., a physical presence) in the EU, and that engage in "cross-border processing," are permitted, but not required, to choose a lead supervisory authority (LSA). The LSA, or the "one-stop-shop," coordinates "cross-border processing" issues across the EEA, and has primary responsibility for conducting investigations into the organization's data processing activities and responding to its compliance inquiries. An organization's LSA is the Member State in which its "main establishment" is located; the "main establishment" is the central administrative location where "decisions about the purposes and means of the processing of personal data are taken and [that] has the power to have such decisions implemented." After Brexit, organizations whose "main establishment" is in the UK will no longer be able to designate the ICO as their LSA. Moreover, unless those organizations physically move the operations where their decisions about processing of personal data are made to an EEA country, they may, in certain scenarios, lose the ability to designate an LSA altogether, leaving them subject to regulation by multiple EEA data protection authorities.

Data Protection Officers

The ICO's guidance states that Data Protection Officers (DPOs) appointed by a company may continue in that role, and combine their future UK responsibilities with any ongoing EU responsibilities, so long as "they have expert knowledge of both UK data protection law and the EU regime, and are 'easily accessible' from both locations." Because the UK GDPR mirrors the GDPR, your DPO who already possesses knowledge of the GDPR will also necessarily possess knowledge of the UK GDPR. Your DPO should also possess knowledge of the Data Protection Act 2018, which took effect at the same time as the GDPR.

Privacy Notices

ICO guidance suggests that the information required in your privacy notice is unlikely to change.  To the extent that your privacy notice refers to "Union law" or other GDPR-specific terminology, updates will need to be made, and reference to your organization's UK representative, if applicable (as discussed above), will need to be added. If your U.S.-based organization participates in the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks for data transfers from the EU or Switzerland, respectively, to the U.S., you will need to update your privacy notice by March 29, 2019, to affirm that your commitment to the Privacy Shield extends to UK personal data, as we discussed in a recent blog post.

Article 30 Records of Processing

Changes to the information you are required to document are not likely. You may need to review certain of your processing activities involving data transfers to the UK and update your records accordingly. For example, you may now have to classify certain personal data as being subject to international transfer rules and document under which adequate safeguards it was transferred.

Data Protection Impact Assessments

Existing assessments may need to be reviewed to determine whether they cover international data flows that become restricted after Brexit.


If your organization does business in the UK, you should begin to address these issues promptly, certainly in advance of the No Deal Brexit date of March 29, 2019, and continue to monitor any updates and further ICO guidance on this topic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions