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Business as Usual: UK’s New Data Protection Bill and the GDPR

Posted in EU Data Protection, Legislation, Privacy

The UK Government will introduce a new Data Protection Bill (the “Bill”) this year. As highlighted in the Queen’s speech back in June, the Government has committed to introduce the new law and, on Monday, published a Statement of Intent.

The Bill will not change the position that the EU’s new data protection legislation – the General Data Protection Regulation (GDPR) – will bring when it comes into force on 25 May 2018. The UK will still be in the EU at that time and so the GDPR will be automatically transposed into English law and replace the UK’s current Data Protection Act. However, when the UK leaves the EU and is no longer subject to the GDPR, the Bill when then implement the GDPR into English law. The importance of this is two-fold; it will support the UK’s position with regard to preserving personal data flows between the UK, EU and other countries around the world, and gives UK businesses clarity about their data protection obligations following Brexit.

The Bill will also introduce the national member state derogations that are permitted under the GDPR. The Government asked for feedback (Call for Views) on how the UK should deal with these exemptions earlier this year. The Statement of Intent provides some detail on the Government’s proposed approach, which include:

  • Enabling children aged 13 year or older to consent to their personal data being processed (under the GDPR the age for valid consent is 16 unless member states reduce this through national law);
  • Maintaining the UK’s position on processing personal data relating to criminal convictions and other sensitive personal data (enabling employers to carry out criminal background checks in certain circumstances);
  • Enabling organisations to carry out automated decision making for certain legitimate functions (e.g. credit reference checks);
  • Maintaining the UK’s current position with regard to the processing of personal data in relation to freedom of expression in the media, research and archiving.

Two new criminal offences will also be created. An offence of intentionally or recklessly re-identifying individuals from anonymised or pseudonymised data, and an offence of altering records with intent to prevent disclosure following a subject access request. Both offences will be subject to an unlimited fine.

The Bill will also implement the EU’s new Data Protection Law Enforcement Directive (DPLED) in English law. The DPLED sits alongside the GDPR and deals with processing of personal data by the police, prosecutors and other agencies involved in law enforcement. However, unlike the GDPR, the DPLED is an EU Directive (not a Regulation) and so must be implemented into member state law through national legislation by 6 May 2018.

The draft text of the Bill is due to be published and put before Parliament in early September. The Bill will be largely identical in effect to the GDPR. In light of the increased fines imposed by the GDPR (up to €20,000,000 (£17,000,000) or 4 per cent of an organisation’s global annual turnover, whichever is higher), companies should still be continuing with their GDPR compliance efforts to ensure adherence to the new law by 25 May 2018.