GDPR and the post-Brexit UK

The Brexit-Leave-Vote will have substantial influences on the economy inside and outside of the UK. But the impact will be even higher on UK-based, but also on EU-based and even non-EU based organisations, potentially posing a major threat when it comes to various aspects of business. Especially seen from the aspects of data protection, security and privacy, the future of the data protection legislation within the UK will be of great interest.

When asked for his professional view as a lawyer, our fellow analyst Dr. Karsten Kinast replied with the following statement:

"On the 23rd June, UK carried out a referendum to vote about UK´s EU membership. About 52% of the participants voted for leaving the EU. The process of withdrawal from the EU will have to be done according to Art. 50 of the Treaty on the European Union and will take about two years until the process is completed.

The withdrawal of the UK´s membership will also have an impact on data protection rules. First of all, the GDPR will enter into force on the 25th May 2018, so that by this time, the UK will still be in process to leave the EU. This means that UK businesses will have to prepare and be compliant with the GDPR.

Additionally, if UK businesses trade in the EU, a similar framework to that of the GDPR will be required in order to carry out data transfers within the EU member states. The British DPA, ICO, published a statement regarding the existing data protection framework in the UK. According to ICO, 'if the UK wants to trade with the Single Market on equal terms we would have to prove adequacy – in other words UK data protection standards would have to be equivalent to the EU´s General Data Protection Regulation framework starting in 2018'.

Currently, the GDPR is the reference in terms of data protection and organizations will have to prepare to be compliant and, even if the GDPR is not applicable to UK, a similar framework should be in place by the time the GDPR enters into force."

So it is adequate to distinguish between the phase before the UK actually leaving the EU and the time afterwards. In the former phase, starting right now EU legislation will still apply, so in the short term organisations might be probably well advised to follow all steps required to be compliant to the GDPR as planned anyway. With the currently surfacing reluctance of the British government to actually initiate the Art. 50 process according to the Lisbon treaty by delaying the leave notification until October, this first phase might even take longer than initially expected. And we will most likely see the UK still being subject to the GDPR as it comes into effect by May 2018 and before the actual exit.

For the phase after the actual exiting process the situation is yet unclear.  What does that mean for organisations doing business in and with the UK as soon as GDPR is in full effect?

  • In case they are UK-based and are only acting locally we expect them to be subject to just the data protection regulations as defined in Britain after the exit process. But any business with the EU will make them subject to the GDPR.
  • In case they are based in the EU they are subject to the GDPR anyway. In that case to have to be compliant to the rigid regulations as laid out in the EU data protection regulation.
  • In case they are based outside of the EU but are doing business with the EU as well, they are again subject to the GDPR.
  • We expect the number of companies outside the EU doing business only with a post-Brexit UK (i.e. not with the EU at all) to be limited or minimal. Those would have to comply with the data protection regulations as defined in Britain after the exit process.

Reliable facts for the post-Brexit era are not yet available. Nevertheless, CEOs and CIOs of commercial organisations have to make well-informed decisions and need to be fully prepared for the results of the decisions. An adequate approach in our opinion can only be a risk-based approach: organisations have to assess the risks they are facing in case of not being compliant to the GDPR within their individual markets. And they have to identify which mitigating measures are required to reduce or eliminate that risk. If there is any advice possible at that early stage, it still remains the same as given in my previous blog post: Organisations have to understand the GDPR as the common denominator for data protection, security and privacy within the EU and outside the EU for the future, starting right now and effective latest by May 2018. Just like Karsten concluded in the quote cited above: To facilitate trading in the common market the UK will have to provide a framework similar to the GDPR and acceptable to the EU.

So any organisation already having embarked on their journey for implementing processes and technologies to maintain compliance to all requirements as defined by the GDPR should strategically continue doing so to maintain an appropriate level of compliance by May 2018 matter whether inside or outside the UK. Organisations who have not yet started preparing for an improved level of security, data protection and privacy (and there are still quite a lot in the UK as well, as recent surveys have concluded) should consider starting to do so today, with the fulfilment of the requirements of the GDPR adapted to the individual business model as their main goal.

We expect stable compliance to the regulations as set forth in the GDPR as a key challenge and an essential requirement for any organisation in the future, no matter whether in the EU, in the UK or outside of Europe. Being a player in a global economy and even more so in the EU single market mandates compliance to the GDPR.



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