What should UK business do when it comes to GDPR if no deal Brexit actually takes place?
At first glance, no deal Brexit should not pose a major problem for UK businesses. The UK applies GDPR and will continue to apply it, either directly or based on Data Protection Act 2018. There are no major plans to change the principles or even the rules of GDPR. It could be business as usual. But not quite.
No deal data transfers EU-UK
The transfers of personal data from the EU to the UK will be deemed transfers to a third country. Whereas one could expect the European Commission to issue an adequacy decision for the UK based on the UK’s law being based on EU GDPR, this decision might not be timely. Accordingly, businesses might need to cover such transfers, most likely using Standard Contractual Clauses (SCC). The ICO has decided to help them out with this tool: https://ico.org.uk/for-organisations/data-protection-and-brexit/standard-contractual-clauses-for-transfers-from-the-eea-to-the-uk-interactive-tool/y
The good news is that the UK government has stated that, when the UK exits the EU, transfers to the EEA from the UK will not be restricted. There will be transitional provision for a UK adequacy decision to cover these transfers. This means you will able to continue to send personal data from the UK to the EEA without any additional requirements.
Appointing a data protection representative in the EU
Depending on what you do, you may need to appoint a data protection representative in the EU. This will most likely be the case if you are offering goods or services, irrespective of whether a payment of the data subject is required, to data subjects in the EU, for example via a website. Similarly, this will apply to your online or offline monitoring of people’s behaviour as far as this behaviour takes place within the EU. Where you have a subsidiary in the EU, they can act as your representative, and if you have a branch established in the EU, no representative would be required.
Do you require assistance with GDPR and Data Protection Act 2018 compliance, including support in relation to Brexit? Aphaia provides both GDPR adaptation consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing.
Commission Recommendation on Cybersecurity of 5G networks sets an action plan for the Member States. We explore the main sources of 5G privacy risks.
According to Commission Recommendation on Cybersecurity of 5G networks, EU Member States should by the 30th June 2019 carry out a risk assessment of 5G network infrastructure, including identifying the most sensitive elements where security breaches would have a significant negative impact. By the same date, Member States should also review the security requirements and the risk management methods applicable at national level, to take into account cybersecurity threats that may arise from (i) technical factors, such as the specific technical characteristics of 5G networks, and (ii) other factors such as the legal and policy framework to which suppliers of information and communications technologies equipment may be subject in third countries.
A toolbox will further be agreed at the EU level that will include a risk inventory and a set of possible mitigating measures (e.g. third-party certification for hardware, software or services, formal hardware and software tests or conformity checks, processes to ensure access controls exist and are enforced, identifying products, services or suppliers that are considered potentially not secure, etc.).
5G vs 4G privacy risks
Since we all already use 4G and 3G mobile networks, the key practical question is the comparison between 5G vs 4G privacy risks. Are there fundamental differences? Whereas there might be few qualitative differences, one can think of higher density of 5G cells that enable more precise user location information or the impact of potential network management decentralisation e.g. in relation to locally available 5G services. Mobile location issues are addressed by the EU ePrivacy Directive, soon to become ePrivacy Regulation.
According to Vesna Prodnik Pepevnik, CEO of Vafer and 5G mobile network expert, the main challenges will be linked to vertical applications, from autonomous vehicles and healthcare to energy and monitoring systems with various omnipresent sensors. “The more systems and therefore data are processed by 5G networks, the higher the risk.” In her view, the Commission’s 5G security proposals are currently vague, which might even prove to be an obstacle for certain 5G use cases and therefore the EU’s ambitions in relation to 5G.
It, therefore, remains to be seen to what extent will the proposed measures, including the expected toolbox, provide the necessary safeguards for the industry and trust for the end-users, which are both essential for 5G becoming a major driver for IoT applications.
Aphaia provides Data Protection Impact Assessment, including in relation to ePrivacy, and Telecommunications Policy and Regulation services
At the beginning of the year, Romania took over the rotating presidency of the Council of the European Union. The EU ePrivacy Regulation was initially set out two years ago, to be implemented at the same time as GDPR.
A set of amendments to the proposed ePrivacy Regulation were released by the Romanian Presidency. These are worth looking at – but you should not expect any spectacular changes!
Which services warrant ePrivacy?
This has been an important matter within the ePrivacy Regulation proposal all along: communications privacy rules were to be expanded to services such as online marketplaces, gaming- or mobile apps messaging features.
The latest Romanian Presidency amendment makes it clear, referring to the definition of the new European Electronic Communications Code (EECC), that ‘interpersonal communications service’ that warrant such privacy protection shall include services that enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service.
In other words, no matter how insignificant the messaging feature may be in relation to the service, it warrants the protection of its privacy as any other interpersonal communication.
Limitations to the security processing exception
According to the amendments, security will be more difficult to use as a blanket exception for data processing. Whereas processing is acceptable if it is necessary to detect or prevent security risks and/or attacks on end-users’ terminal equipment, such processing is only permitted “for the duration necessary for that purpose”.
Other interesting amendments
The amendments include a requirement for supervisory authorities to cooperate with data protection authorities when appropriate, as well as new investigative and corrective powers for those supervisory authorities.