What Does a No-Deal Brexit Mean for Data Flows?


Now the dust is settling somewhat after the recent surprising vote in UK parliament, it is as yet still unclear what will happen next with regards to Brexit. One thing is sure though – the deal that was reached in November is off the table in its current form. The first comments from the EU indicate that the European leaders are open for negotiations; however, it is highly unlikely that there will be major changes to the deal that is currently on the table. And given the current political chaos in Westminster, it is no longer unlikely there will be no deal at all.

The recent article from the BBC highlights that as the clock ticks, the practical implications of a No-Deal Brexit will become more and more real. This situation is reminiscent of the real scare that US companies experienced when the Safe Harbor agreement was struck down by the European Court of Justice, putting in peril data transfers between the EU and the US. Britain will face very similar issues as it will need to rush to seek an adequacy decision from the EU, a decision which is not guaranteed, as the Commission and Data Protection Authorities will no doubt bring into scope Britain’s national security laws as part of the review.

These things will take time, and in order for companies to avoid falling in between the gaps, making preparations as soon as possible will ensure that the costs of compliance following Brexit are kept under control, both in terms of financial and human resources. Trade associations like ESOMAR working for the data, research, and insights sector understand this and have already put in place support programmes for their members to be kept informed of developments, and to be given support for the worst-case scenario at a cost-price that remains affordable to SMEs.

Our ESOMAR Plus Programme assists companies by reviewing data processing agreements, scanning the data processing framework that currently exists and suggests ways to future-proof them whilst increasing compliance. Companies would do well to seek out such services rather than wait for politicians who seem to be more preoccupied with getting a deal done than supporting small economic actors.

Regardless of the outcome, trade between the UK and the EU will become more complicated. In the case of a deal, there will be a transition period of circa 2 years where not much will change, and the hope is that a proper trade deal will be reached during that period. However, if an agreement for such a transition period cannot be reached, the UK will be treated like any other 3rd country as of 29 March.