Chequers agreement white paper: what it means for the data and marketing industry

Friday’s Chequers negotiations proved too much for some, with key resignations in the cabinet casting doubt on the government’s position. Nonetheless, Theresa May has stood firm and gone ahead with the publication of the government’s position. Below, we have picked out the key points that relate to the data and marketing industry and given our two cents on what they will mean going forward.

Before we venture into this folly, it’s important to remember the following:

1. This agreement is hotly contentious. Hard-line Brexiteers do not like it at all. To prevent resignations down the line, the government may make a concession on one or two of these positions to keep ranks.
2. This paper outlines the UK government’s negotiation position. This is not — I repeat, this is NOT — the final Brexit deal. The Europeans will now look at this and decide whether they can stomach any of it. It’s highly probably they will contest a great deal.

So, putting this aside, let’s venture far away to the land of hypotheticals: where Theresa May keeps her cabinet in line and Brexit Secretary (and karate black belt), Dominic Raab, plays a blinder in negotiations and persuades the EU to agree to everything set out in the Chequers agreement.

Section 3.2: Data protection

This section of the paper advocates for continued exchange of personal data and the current protections that come with this. Highlighting the potential for an adequacy agreement (that ol’ chestnut), the UK will seek to have the deepest relationship with data – akin to the one we have now.

Regulatory alignment would be sought.

This would include cooperation of security services.

What this means:
This is good news! This level of cooperation is exactly what the DMA and other industry partners have been pushing for. It is absolutely ESSENTIAL that we get data alignment in the final deal or a huge number of businesses will face bureaucratic barriers and reduced access to markets.

The security services’ cooperation is a vital component of this, as if the UK’s security services did not cooperate with the EU, their surveillance practices would prevent the EU from agreeing to share the data of European citizens. They argue the UK unduly invades the privacy of citizens through such practices. As such, the continued cooperation of the security services would likely eliminate this problem and pave the way for the free flow of data.

Section 3.2.2: Regulatory cooperation

This section expands on the point about regulatory alignment. The white paper recognises that the ICO has played a large part in the creation of EU data laws thus far and that there should be a continuing role going forward.

What this means:
Regulatory cooperation can mean a number of things. Ideally, the ICO would have a seat at the table and decision making power. This is fairly ambitious, however, the ICO has been pivotal in the creation of data protection law in Europe, so you might say it is in the European’s interests to have us keep a similar role in regulation to the one we have now.

The flip side of this is that the EU doesn’t really want to give the UK any power in decision making. As far as it is concerned, why should the UK have decision making power within an institution it wishes to leave? Nonetheless, pragmatism may taper this view.

The ICO is one of the best-resourced regulators in the EU and aside from Ireland the only native English speaking country, the lingua franca of the EU, and so a valuable asset.

If the ICO does maintain its current positions, UK industry interests will be represented on the level they are today. The UK would continue to have a great deal of influence on data regulations going forward.

Section 1.5: Digital

This section affirms the position that the UK will not be a part of the Digital Single Market. Nonetheless, it highlights the need for “regulatory flexibility, to ensure the UK can respond nimbly to new developments”.

The paper says that digital trade with the EU is still important and we should work together to capitalise on the growth of digital technologies globally.

It proposes a relationship that covers “digital trade and e-commerce; telecommunications and digital infrastructure; digital technology; and broadcasting”.

What this means:
This goes hand-in-hand with the stance on the free flow of data. This will allow continued relationships with European partners on digital expansion and the ability to trade goods and services.

Section 1.5.1: Digital trade and e-commerce

Echoing much of what has come before, this section continues to argue for the removal and prevention of barriers to the flow of data across borders. It supports the “free, open and secure internet” and encourages continued UK-EU innovation on developing secure partnerships.

What this means:
Again, this is a positive position and one which the DMA has voiced to parliament and government before. Agreeing on these terms with the EU will assure businesses that they can work with EU partners in the knowledge that secure international processes will protect their data.

Section 1.5.2: Telecommunications and digital infrastructure

This section states the importance of maintaining current agreements on infrastructure in telecoms and the internet.

What this means:
Many AI inventions rely on the ability to cross borders seamlessly through extensive digital and telecommunications networks. This will allow UK businesses to continue to lead the way in innovating AI products and services that can be bought and used the world over. Another win for the UK’s data industry.

Section 1.5.3: Digital technology

Just as the UK needs access to EU markets for the development of AI and other digital technologies, the EU as a whole needs to cooperate with the world to ensure that tariff barriers are removed where mutual benefit is clear. AI and digital technology is one of these areas. The paper argues that UK should continue to work with the EU in this regard – through regulatory alignment and shared research – so that both can gain from shared innovation and action.

The report cites the example of the European AI Alliance, which has been commissioned to draft ethical guidelines on AI design and use by the end of 2018.

What this means:
A huge number of tech companies across Europe are working to tackle problems in the world, big and small. Aligned visions and working structures will allow cooperation and collaboration on important developments going forward. Along with the ability to share data, exploring new models for regulatory cooperation will positively impact UK businesses in tech and beyond.

The overall consensus:

The stances taken in the white paper are positive for the industry. The DMA has successfully lobbied for all these arrangements in parliament, business and beyond. As such, the DMA will continue to support the government in its advancement of these positions on data and regulatory alignment.

Chris Combemale, CEO of the DMA Group, said: “The DMA supports the Government’s position on the free flow of data in the Brexit whitepaper. We have consistently advocated for a robust UK-EU deal on data protection that would ensure organisations could exchange data freely, much as they do now. This must include continued close cooperation between the ICO and EU data authorities in addition to regulatory alignment. It’s reassuring to see the UK government have listened to the concerns of our industry and is proposing a way forward that will enable the UK to remain a world leader.”