Brexit: Deal Includes Extension for Data Adequacy Negotiations

On 31 December, the UK and EU came to an agreement on the post-Brexit trade deal.

The deal covers the contentious issues industries such as fishing, agriculture, some elements of free trade and some elements of security and governmental cooperation.

While this will be a relief to most, and the DMA welcomes this agreement that avoids the potential horrors of a No Deal exit, there are some significant points that have not (or in some cases, not yet) been agreed.

Indeed for data, earlier in the year, the EU and UK are agreed to treat data adequacy as a separate technical issue. This meant that talks on data adequacy could continue between the UK and EU, and a decision can still be reached if there was a possibility of no-deal.

However, this now means data needs to be agreed in spite of the Brexit deal agreed.

Originally, the deadline for this was 31 December. However, the Brexit deal contains an extension of Adequacy Negotiation period has been agreed for 6 months.

In short:

• This bridge period starts on the date the new deal takes effect and will last a maximum six months, or end as soon as the EU’s data adequacy decision has been finalized, which is expected to happen in early 2021.
• Personal data shipped to the U.K. during this interim period “shall not be considered as transfer to a third country” under EU law, the document says, adding that the U.K. has to suspend its own transfer mechanism.
• If the U.K. applies a new transfer tool to ship data to a third country during the interim period, it should “as far as is reasonably possible” inform the EU.
• Both sides committed to upholding high levels of data protection standards and to ensure “cross-border data flows to facilitate trade in the digital economy” without imposing limits on where data can be stored or processed.

Furthermore, the fact there is a deal of some kind may supply some goodwill and greater impetus to agree a data adequacy agreement.

Nonetheless, we still can't say an adequacy deal is likely, as recent developments would suggest.

Therefore, in spite of the new extension, you must prepare your business for the chance of a No deal on data by June 2021.

To do so, you should familiarise yourself with the DMA’s Brexit Toolkit, which has information about all methods of data transfer, regardless of whether a deal is reached or not.

You can also find this information and more by listening back to the DMA Policy and Legal team’s recent webinar on Brexit and data flows.

The DMA has put enormous effort in over the last several years to impress upon the UK Government how serious the issue is for the success of the data and marketing industry. We will continue to push hard to ensure the industry’s interests are heeded in the weeks and months ahead.

For questions on the impact of these developments on your organisation, please don’t hesitate to reach out to the DMA’s Policy team.