Beyond GDPR: How Brexit Affects Other Data Laws
Since the United Kingdom (UK) voted in June, 2016, to exit the European Union (i.e., “Brexit”), the question in many minds has been, “Whither GDPR?” After all, the UK was a substantial contributor to this legislation. The UK has offered assurances that it intends to, in large part, harmonize its data protection laws with GDPR. However, GDPR isn’t the only law or regulation which governs data protection in the European Union. And in some cases, the answers for the UK in a post-Brexit world are far less clear.
Privacy and Electronic Communications Regulations (PECR)
The PECR rules address marketing, cookies and electronic communications such as emails, texts and faxes. PECR is established within the UK framework of laws and so even after Brexit takes effect, it would continue to apply to the UK. The issue, however, is that PECR will be replaced, most likely in the next two years, by the ePrivacy Regulation, which is designed to be a complement to GDPR. The ePrivacy Regulation addresses personal privacy across electronic communications in a more specific manner than does GDPR. Specifically:
- Metadata associated with online communications content must be anonymized or deleted if users do not provide consent to it being retained.
- With limited exceptions, online web surfers must be given the option of tiered cookie policies in which consent may be withdrawn at any time.
- It clarifies that it applies to machine-to-machine communications that may typically occur in an IoT setting.
How and whether the UK chooses to incorporate the ePrivacy Regulation into its set of data protection laws depends in large part upon whether the Brexit Withdrawal Agreement is ratified. If the ePrivacy Regulation were to take effect during any Brexit transition period as set forth in the Brexit Withdrawal Agreement, then the new regulation would automatically become part of UK law. However, if the ePrivacy Regulation were not to be finalized during the transition period outlined in the Brexit Withdrawal Agreement, then a likely scenario is that the UK retains PECR—which creates complications in that it is based on GDPR’s predecessor legislation, the EU Directive.
Directive on Security of Network and Information Systems (NIS)
NIS provides a set of parameters aimed at securing critical network and other technology systems. It is aimed primarily at digital service providers such as search engines, cloud computing services and online marketplaces. As with PECR, NIS laws are specifically set forth in UK laws, and so will continue to apply after Brexit. One important caveat exists, however—if the UK is unable to negotiate a Brexit deal prior to the October 31, 2019, deadline, then UK companies may be required to comply with adhere to the locally implemented NIS laws of other member states in which it provides products or services.
Electronic Identification, Authentication and Trust Services Regulation (eIDAS)
eIDAS regulates European electronic identification, authentication and trust services. As eIDAS isn’t incorporated into UK laws or regulations, eIDAS will cease to exist for purposes of the UK. The UK government has indicated recently that it intends to implement its own identification/authentication rules once Brexit takes effect.
Uncertainty around eIDAS applicability is particularly concerning, in that its very purpose was to create standardization across technologies such as electronic signatures and related trust services. Ideally, this critical need for standardization will drive British authorities to closely model their own regulations after eIDAS.
Taken as a whole, the impact of Brexit upon business both within and outside the EU is considerable, and these uncertainties make a large problem even more complex. For those nations (and more specifically, businesses) outside of the EU, it is likely that they will need to develop one playbook for doing business in and with the businesses in the EU, and another playbook for dealing with the UK. Indeed, the playbooks will overlap in some respects, but even if just viewing these issues through the lens of data protection, Brexit creates an entirely new scenario in which the UK is fundamentally its own country with its own rules.