The UK’s “data challenge” to the EU

This blog post is a re-elaboration of my interview this morning with Luca Bertuzzi, Digital & Media Editor from EurActiv, available here.

Today the UK unveiled its “post-Brexit global data plans to boost growth, increase trade and improve healthcare”, which also include a multi-billion pound partnership with the US, Australia and the Republic of Korea. 

Secretary of State for the UK Government Department for Digital, Culture, Media and Sport, Mr. Oliver Dowden, declared “Now that we have left the EU I’m determined to seize the opportunity by developing a world-leading data policy that will deliver a Brexit dividend for individuals and businesses across the UK.” 

It’s safe to say that data protection rules are stifling international trade. Since the so-called “Schrems II” ruling of the CJEU, transferring data in compliance with EU data protection legislation – on which the UK’s rules are still strongly based – has become very cumbersome. There were important reasons for the decision, however, which concern the protection of data subjects from potentially unlawful interference by foreign Law Enforcement Authorities. Due to the fact that EU Supervisory Authorities have not yet managed to provide truly practicable solutions to transfer data in full respect of the law and their prescriptions, the digital economy is suffering. 

With its global data plans, the UK has launched a challenge not just for the EU, but on a global level, a challenge that consists in keeping high data protection standards (EU equivalence) and at the same time re-thinking data protection legislation in a way that makes it more innovation-friendly, not only in terms of the transfer of data, but also in terms of the use of data for scientific research purposes, etc. I think that the UK will be successful in removing barriers for the data-driven economy and society, but I am not sure that it will manage to maintain a standard of protection that is equivalent to the one in the EU. If the UK achieves both goals, it would represent a masterpiece and a new global model for data protection!

Secretary of State Dowden seems very determined to modify the UK law where necessary to make the UK a science and technology superpower. This may come at the cost of data protection. I inevitably expect divergence with the EU regime, for example, on the commercial use of data for marketing, profiling and monetization purposes, with respect to the use of data for scientific research purposes, and concerning data transfer in order to recognize countries such as the US, Australia, the Republic of Korea, Singapore, the Dubai International Financial Centre and Colombia (in the short run) and India, Brazil, Kenya and Indonesia (in the mid-long run), as adequate. In my opinion, the degree of divergence with the EU depends on how the concepts of “common sense” and “responsibly” referred to in the declarations of Secretary of State Oliver Dowden of “reforming our own data laws so that they’re based on common sense, not box-ticking” and to “ensure data is used responsibly to achieve those goals [i.e. to pursue a new era of data-driven growth and innovation]” will be interpreted in the legislative process.

The UK’s move is very understandable from both the geo-political and economic perspectives and I think that it is much needed in a situation where EU data protection law, especially on data transfers, is having a tremendous side effect of bogging down the global flow of data. Indeed, the EU has placed numerous obligations on organizations without offering any truly practicable solutions. With its global data plans, the UK has launched the ambitious challenge of keeping high data protection standards and at the same time re-thinking data protection legislation in a way that makes it more innovation-friendly.

The EU should take up the challenge this opportunity offers to reflect on how its system can be improved and its global leadership maintained, not just with respect to high data protection standards and enforcement, but also with the goal of showing that it is capable of providing practical and truly actionable rules which can genuinely support our data-driven economy and society.

Read more here and also see “UK launches global data plans to become a ‘technological superpower’” by EurActiv journalist Luca Bertuzzi.

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