Update (10 September 2019): We have refocused our data protection guidance for a no-deal Brexit so that it better addresses the needs of small organisations. We’ve taken many of the key points from the ‘6 steps’ guidance and included them in our new guidance for small organisations. In order to avoid any confusion we have removed the ‘6 steps’ guidance from the ICO website.
Elizabeth Denham's latest blog busts the myths for UK small and medium sized businesses transferring personal data to and from the EEA
Like everyone in the UK right now, we are following the twists and turns of the Brexit negotiations. The sharing of customers’, citizens’ and employees’ personal data between EU member states and the UK is vital for business supply chains to function and public authorities to deliver effective public services.
At the moment personal data flow is unrestricted because the UK is an EU member state. If the proposed EU withdrawal agreement is approved, businesses can be assured that personal data will continue to flow until 2020 while a longer term solution can be put in place.
However in the event of ‘no deal’, EU law will require additional measures to be put in place by UK companies when personal data is transferred from the European Economic Area (EEA) to the UK, in order to make them lawful.
With less than two months to go until the UK leaves the EU, we recognise that businesses and organisations are concerned. My latest myth busting blog challenges some of the misconceptions about what a ‘no deal’ Brexit will mean for UK companies transferring personal data to and from the EEA.
Myth #1: Brexit will stop me from transferring personal information from the UK to the EU altogether.
In a ‘no deal’ situation the UK Government has already made clear its intention to enable data to flow from the UK to EEA countries without any additional measures. But transfers of personal data from the EEA to the UK will be affected.
The key question around the flow of personal data, is whether your data is going from the UK to the EEA or exchanged both ways? If you are unsure, start by mapping your data flows and establish where the personal data you are responsible for is going.
All businesses operating in the EEA should consider whether they need to take action now. Read our guidance pages to establish whether you need to prepare for data transfers in the event of ‘no deal’.
Myth #2: I have regular customers from Europe who come to my family’s hotel every year – I’ll need a special agreement set up to deal with their personal details.
When a customer passes their own personal data to a company in the EEA or the UK, it is not considered to be a data transfer and can continue without additional measures.
However, there may be other ways you transfer data, for example a booking agency transferring a list of customers, in this case you may need additional measures. If you are unsure please check the ICO’s guidance pages where we have a range of tools and advice to help.
Myth #3: Brexit will only affect data transfers of UK companies actually exporting goods or services to the EU.
Personal data transfers are not about whether your business is exporting or importing goods. You need to assess whether your business involves transfers of personal data, such as names, addresses, emails and financial details to and from the EEA and if this is going to be lawful in the case of ‘no deal’.
It is the responsibility of every business to know where the personal data it processes is going, and that a proper legal basis for such transfers exists. Our guidance – Leaving the EU – six steps to take will help.
Myth #4: My business will be fine because there will be a European Commission adequacy decision on exit day to ensure the uninterrupted exchanges of personal data between the UK and the EU.
‘Adequacy’ is the term given to countries outside the EU that have data protection measures that are deemed essentially equivalent to European standards. Companies and organisations operating within countries with adequacy agreements enjoy uninterrupted flow of personal data with the EU. But an assessment of adequacy can only take place once the UK has left the EU. These assessments and negotiations have usually taken many months.
Although it is the ambition of the UK and EU to eventually establish an adequacy agreement, it won’t happen yet. Until an adequacy decision is in place, businesses will need a specific legal transfer arrangement in place for transfers of personal data from the EEA to the UK, such as standard contractual clauses.
Myth #5: Our parent company in Europe keeps all our personal data records centrally so I don’t need to worry about sorting any new agreements.
Don’t presume you are covered by the structure of your company. In the case of ‘no deal’, UK companies transferring personal information to and from companies and organisations based in the EEA will be required by law to put additional measures in place. You will need to assess whether you need to take action.
There are many mechanisms companies can use to legitimise the transfer of personal data with the EEA and standard contractual clauses is one of those. We have produced an online tool to help organisations put contract terms in place providing the lawful basis for the data transfers. Companies that need to act would also benefit from Leaving the EU - six steps to take guidance for more information.
You know your organisation best and will be able to use our guidance to assess if and how you need to prepare. Alternative data transfer mechanisms exist but it can take time to put those arrangements in place.
It is in everyone’s interests that appropriate exchanges of personal data continue whatever the outcome of Brexit. The ICO will carry on co-operating internationally to ensure protections are in place for personal data and organisations have the right advice and guidance.
Elizabeth Denham was appointed UK Information Commissioner on 15 July 2016, having previously held the position of Information and Privacy Commissioner for British Columbia, Canada.