The General Data Protection Regulation (GDPR) has been a fundamental law for data protection across Europe since its implementation in 2018. However, with Brexit, the United Kingdom adopted its version of the GDPR—known as the UK GDPR—on January 1, 2021. While the UK GDPR closely mirrors the EU GDPR, there are several key differences that businesses need to be aware of to ensure compliance. In this blog, we’ll explore the essential distinctions between the UK GDPR and the EU GDPR and discuss what they mean for businesses operating in or with the UK.
1. Supervisory Authorities: ICO vs. EU Regulators
One of the most noticeable differences between the UK GDPR and the EU GDPR is the role of supervisory authorities.
- UK’s Information Commissioner’s Office (ICO): The ICO is the primary data protection authority under the UK GDPR, responsible for enforcing compliance, handling data breaches, and providing guidance within the UK. Post-Brexit, the ICO no longer participates in the EU’s one-stop-shop mechanism, meaning UK businesses cannot rely on a single EU regulator for cross-border data processing within the EU.
- EU Supervisory Authorities: Under the EU GDPR, businesses with operations in multiple EU member states benefit from the one-stop-shop mechanism, where a lead supervisory authority oversees data protection matters. For UK businesses operating in the EU, this means they may need to engage with multiple EU data protection authorities, depending on their activities within the region.
2. International Data Transfers: Adequacy and Beyond
Data transfers between the UK and other countries have become more complex post-Brexit, particularly when it comes to the movement of data between the UK and the European Economic Area (EEA).
- Adequacy Decision: As of June 2021, the European Commission granted the UK an adequacy decision, allowing for the free flow of personal data between the UK and EEA without the need for additional safeguards. However, this adequacy decision is subject to periodic reviews and could be revoked if the UK diverges significantly from EU data protection standards.
- Standard Contractual Clauses (SCCs): For data transfers outside the EEA, businesses must use SCCs or other approved mechanisms to ensure data protection standards are upheld. The UK GDPR requires its version of SCCs, and businesses may need to review and update their data transfer agreements accordingly.
- Divergence Risks: Any future changes in UK data protection law that deviate from EU standards could jeopardize the adequacy decision, complicating data transfers between the UK and the EU.
3. Terminology and Legal References
The UK GDPR has modified certain terms and references to align with UK law and governance, which businesses need to understand for accurate compliance.
- Legislative References: The UK GDPR replaces references to EU institutions with those relevant to the UK. For example, references to the “European Data Protection Board” (EDPB) in the EU GDPR are replaced with “the Commissioner” (the ICO) in the UK GDPR.
- UK-Specific Provisions: Certain provisions within the UK GDPR have been adjusted to reflect UK-specific legal contexts, such as references to UK law enforcement authorities or the Secretary of State’s powers within the data protection framework.
4. Representation Requirements for Businesses
Post-Brexit, the requirements for appointing representatives in the UK and EU have changed, affecting businesses that operate across borders.
- EU Representatives: Under the EU GDPR, businesses that process personal data of EU residents but do not have an establishment in the EU must appoint an EU representative. This representative acts as the point of contact for EU data protection authorities and data subjects.
- UK Representatives: Similarly, under the UK GDPR, businesses outside the UK that process personal data of UK residents must appoint a UK representative. This requirement ensures that the ICO has a point of contact within the UK to enforce data protection laws.
5. Data Protection Impact Assessments (DPIAs)
Both the UK GDPR and the EU GDPR require businesses to conduct Data Protection Impact Assessments (DPIAs) for processing activities that are likely to result in a high risk to individuals’ rights and freedoms. However, there are subtle differences in guidance and expectations.
- ICO Guidance: The ICO provides specific guidance on when and how to conduct DPIAs under the UK GDPR. While the process is largely the same as under the EU GDPR, businesses should refer to the ICO’s resources to ensure they meet UK-specific requirements.
- Dual Compliance: Businesses operating in both the UK and EU may need to conduct DPIAs under both jurisdictions, particularly if processing activities involve cross-border data flows. Ensuring that these assessments meet the expectations of both the ICO and relevant EU supervisory authorities is crucial.
6. Enforcement and Penalties
While the enforcement framework and penalties under the UK GDPR remain consistent with the EU GDPR, there are some differences in how these are applied and managed.
- Fines and Penalties: Both the UK GDPR and the EU GDPR allow for significant fines for non-compliance—up to £17.5 million or 4% of global annual turnover, whichever is higher, under the UK GDPR. However, the enforcement process and appeal mechanisms may differ depending on whether a business is dealing with the ICO or an EU supervisory authority.
- Regulatory Cooperation: Post-Brexit, the ICO no longer collaborates with EU supervisory authorities through the European Data Protection Board (EDPB), which could impact the consistency and coordination of enforcement actions across the UK and EU. Businesses should be prepared for potential discrepancies in regulatory expectations and enforcement between the two jurisdictions.
7. Potential for Future Divergence
While the UK GDPR currently aligns closely with the EU GDPR, there is potential for divergence in the future as the UK seeks to establish its independent data protection regime.
- Regulatory Reforms: The UK government has indicated a desire to create a more flexible, innovation-friendly regulatory environment. This could lead to amendments in the UK GDPR that reduce certain compliance burdens for businesses while maintaining high standards of data protection.
- Impact on International Data Flows: Any significant divergence from EU standards could impact the UK’s adequacy decision and complicate data transfers between the UK and the EU. Businesses must stay informed about potential legislative changes and be ready to adapt their compliance strategies accordingly.
Conclusion
The UK GDPR, while closely aligned with the EU GDPR, presents several key differences that businesses must understand to ensure compliance. From changes in supervisory authority roles to the complexities of international data transfers, navigating these distinctions is crucial for businesses operating in or with the UK. By staying informed and proactive, businesses can successfully manage the challenges of the post-Brexit data protection landscape and continue to protect personal data effectively.