All posts by Wendy Kennedy

Brexit – What Does it Mean for Data Privacy?

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As of 11:00pm tonight the Withdrawal Agreement between the UK and the EU becomes effective.  Many companies have planned for a No-Deal-Brexit, securing data privacy representatives in the UK and the EU separately, and standing by with contract revisions at the ready.  The Withdrawal Agreement provides for a transition period until the end of 2020, during which the GDPR continues to apply to the transfer of personal information between the UK and the EU.

One issue with a No-Deal-Brexit was that since the UK had not yet obtained a ruling from the EU Commission that its data privacy and protection laws provides an adequate level of data protection transfers of personal data between the EU and the UK could only be made subject to additional protections, for example, the Standard Contractual Clauses.  The hope is that during the transition period the UK will amend its current Data Privacy law the Data Protection Act 2018 to ensure to obtain this adequacy decision.  The Data Protection Act of 2018, with amendments, if any will continue to apply in the UK and for the collection and processing taking place wholly with the UK.

The current guidance recommends that at the end of the transition period companies collecting and processing personal information to individuals in both the UK and EU will need to appoint representation in both the UK and the EU and will need to register with a supervisory authority in the EU or the UK depending on the original registration.  Following the end of the transition period the GDPR will continue to apply to personal information collected and processed from data subjects in the EU. 

Other laws covering aspects of data privacy and protection including the PECR (marketing, cookies, and electronic communications), the NIS rues (network and information systems) and their EU counterparts will continue to apply during the transition period. 

California Consumer Privacy Act, Data Privacy, GDPR

What to do in a No-Deal-Brexit Scenario

What happens to your GDPR Compliance Program in the event that the UK leaves the EU without striking an agreement with the EU.   Here is a summary of actions you will likely need to take, followed by a more detailed explanation.

  1. Revise your standard contractual clauses for transfers from the EU to the UK
  2. Ensure you appoint an Article 27 representative in both the UK and the EU. 
  3. Register with a supervisory authority in both the UK and the EU
  4. Make revisions to your privacy policy to refer to both the UK and EU laws, identifies the supervisory authority and the company’s representative in both the UK and the EU
  5. Review DPIAs to ensure compliance with both sets of laws.

According to the ICO (the UK Data Privacy Supervisory Authority), the UK government intends to incorporate the GDPR directly into UK law upon Brexit (UK GDPR).  The UK GDPR together with the Data Protection Act 2018 will comprise the UK’s data protection scheme. Existing GDPR compliance programs must continue to apply those protections to personal data of UK data subjects. Nevertheless,  data controllers and processors will need to make changes to their data privacy and protection practices before a No Deal Brexit. In particular, companies will need to make adjustments with regard to the following:

Data Transfers

Most likely the most burdensome issue. Since the European Commission determines whether a country outside the EU offers an adequate level of data protection, transfers of personal data to such countries are not automatically deemed “adequate.”  Thus, until there has been an adequacy determination, transfers of personal data between the EU and the UK can be made only subject to certain protections, such as Standard Contractual Clauses (SCCs).

The length of time it will take to obtain an adequacy determination from the European Commission is unknown, and there is no assurance that such a decision will be made quickly.  Be prepared to implement interim safeguards and understand how personal data flows from within and out of the UK. Identify which data transfers will be problematic.  Adopt appropriate transfer mechanisms.

Transfers from the EU to the UK. If your company transfers EU personal data to the UK, you will need to ensure adequate safeguards are in place or that one of the exceptions in GDPR Article 49 applies. For some companies, the only available data transfer mechanism will be SCCs. Identify all such data transfers now and begin the process of entering into SCCs with entities to which your company transfers data, such as vendors, customers, and even internal corporate affiliates, so these agreements are in place before Brexit.

Transfers from the UK to the EU. If your company transfers personal data from the UK to the EU, the ICO has indicated that post-Brexit transfers from the UK to the EU will not be restricted.  Although no specific action is required concerning these transfers, best practice suggests that you keep these transfers under review.  

Transfers from the UK to the countries outside the EU. There will not be changes to the rules that govern theEUse changes, as they will have already been in place. It is expected that the UK government will confirm existing adequacy decisions and the SCCs.

Article 27 Representatives

By now you will have appointed a data protection officer (DPO), whether internally or engaged an external one.  This is required, with some exception, by the GDPR.  If your DPO is located in the UK, that DPO will only be valid for compliance within the UK.  Conversely, if your DPO is situated in the EU, an additional DPO must be appointed in the UK.  As a result, to remain in compliance with both the UK and the EU companies will need to appoint two DPOs one in the UK and one in the EU.

Lead Supervisory Authority

Under the GDPR, companies with 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 then coordinates “cross-border processing” issues across the EU and has primary responsibility for conducting investigations into the company’s data processing activities and responding to its compliance inquiries. When choosing an LSA, it should be where the company’s headquarter is located, or if no headquarters, then the place where decisions about the purpose and means of processing are made. Following Brexit, companies whose “main establishment” is in the UK will no longer be able to designate the ICO as their LSA. Moreover, unless those companies physically move the operations where their decisions about the processing of personal data are made to an EU country, they may lose the ability to designate an LSA altogether, leaving them subject to regulation by multiple EU 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 UK responsibilities with 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 will mirror 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

Although, information required in your privacy notice is unlikely to change references to EU law and the identification and contact information for the DPO and the LSA may need to be changed.  If your U.S.-based company participates in the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks 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.

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 you have questions or concerns please contact me for assistance.

Data Retention under the GDPR

Data Privacy, GDPR,

The impact of the GDPR on US companies will be significant. One of the most difficult issues to overcome will be handling data retention. Creating a data retention policy is easy, implementing it will be significantly more difficult. Article 5 sets forth the principle that personal data may be maintained for no longer than is necessary for the purposes for which personal data is collected. While prolonged storage is permitted if the data is anonymized, no longer allowing identification of the data subject, failure to delete and/or anonymize data could trigger significant administrative fines for noncompliance.

Personal information is collected through external processes for example, lead generation, consumer profiling, media pitching and database management; and internal processes, for example, recruitment, hiring, and vendor relationships. The GDPR requires companies maintain higher standards of transparency, security and accountability when it comes to the way they collect, use, and store data. Preparation of a case study for each class of data collected (customers, employees, etc) and compilation of support for maintenance of the data for a set period of time after which it will be deleted is essential. Fines are steep.

Understanding what data may be maintained and what data must be deleted and when is one of the biggest hurdles to ensuring compliance. Many companies have maintained a central database and allowed data to be stored on employee laptops. This practice must now be replaced with strict policies creating a central repository with easily identifiable categories of data with varying deletion deadlines.

Let us help you with this hurdle to GDPR compliance.

 

Notifiable Data Breach Scheme goes Live in Australia

Data Privacy, GDPR

The Notifiable Data Breaches (NDB) scheme went into effect February 22, 2018. This requires agencies and organizations in Australia that are covered by the Privacy Act to notify individuals whose personal information is involved in a data breach that is likely to result in “serious harm” as soon as practicable after becoming aware of a breach. This notification must include recommendations about the steps individuals should take in response to the breach. The Australian Information Commissioner (Commissioner) must also be notified of eligible data breaches. The link provided here sends the reader to the Office of the Australian Information Commissioner and the online form to be used to notify the Australian Information Commissioner.

When a breach occurs the organization is tasked with conducting a quick assessment of a suspected data breach to determine whether it is likely to result in serious harm to any individual affected and thus notification. ‘Serious harm’ is not defined in the Privacy Act. In the context of a data breach, serious harm to an individual may include serious physical, psychological, emotional, financial, or reputational harm.

The first step in deciding whether an eligible data breach has occurred involves considering whether there has been a data breach; that is, unauthorized access to or unauthorized disclosure of personal information, or a loss of personal information (s 26WE(2)). The Privacy Act 1988 (Cth) (Privacy Act) does not define these terms, however the Office of the Australian Information Commissioner provide some guidance through examples.

https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=OAIC-NDB