European Union: Happy Data Protection Day! GDPR, No Deal Brexit And The Crown Dependencies

Today (28 January 2019) marks International Data Protection Day, the day on which the Council of Europe's "Convention 108" on Data Protection was opened for signature. The event is celebrated around the world and few could argue the topic has ever had a higher profile. GDPR has brought awareness of privacy rights to the forefront of many businesses' agendas in a manner which has highlighted the tensions around legal and ethical uses of data in our digital age.

It is somewhat ironic that at a time when the international community is celebrating a construct of the EU, the UK Parliament is set to debate and vote on the Government's revised Brexit proposals. Many businesses in the Crown Dependencies remain concerned about the impact of a "no deal Brexit" on their ability to freely exchange data with clients, suppliers and group companies in the UK, so we've summarised our thoughts on the position, for you to mull over whilst enjoying what might be your last continental breakfast.

What's the problem?

Whilst the UK continues to be a member of the European Union, under the 2018 revisions to data protection laws across the Crown Dependencies, businesses are free to transfer personal data to the UK, subject to the same restrictions as though they were transferring it to a controller or processor next door. Under the original Withdrawal Agreement, this would be permitted to continue during the Transition Period (i.e. until 31 December 2020). During this time (alongside the negotiations for a new trade agreement), an adequacy decision would be issued by the European Commission allowing free flows of data and putting the UK on the same footing as the Crown Dependencies (all of whom have had adequacy decisions in place for a number of years).  

However, the political landscape is nothing if not fluid at the moment, so there is much uncertainty as to whether adequacy could be obtained (Japan only recently received adequacy, after a process lasting several years), or indeed what any deal would mean for data flows. It is worth noting that given the importance of international data flows, it is difficult to envisage a scenario whereby the EU does not reach a positive deal with the UK, as it is in everyone's interests to do so. 

If there is a "no deal Brexit" on 29 March 2019, then the UK will neither be a member of the EU, nor will it have an adequacy decision. It will therefore be caught by the general prohibition within GDPR, prohibiting the transfer of personal data to so-called 'third countries', unless there are adequate safeguards in place. Whilst there are mechanisms to facilitate the transfers, this would create a significant administrative and cost burden for businesses. For all the talk of queues at ferry terminals and delays in the importing of goods, if the free flow of personal data to and from the UK was affected in this way, it would have a far greater impact on businesses, especially in the financial services sector.

What are the Governments of the Crown Dependencies doing about it?

All three Governments are in various stages of their Brexit contingency planning, dealing with a whole array of potential issues and maintaining dialogue with the UK Government and Europe.  The only jurisdiction so far to publicly confirm what steps it intends to take is Guernsey, which reserved the ability to "designate" certain jurisdictions as having appropriate data protection standards. Draft legislation has been prepared to formally designate the UK as an authorised jurisdiction until the end of the Transition Period. If passed, this would mean that Guernsey businesses could continue to freely exchange personal data with the UK in the event of a "no deal Brexit". It will be interesting to see whether Jersey and the Isle of Man follow suit.

What can my business do to prepare for it?

Most responsible businesses are in the process of preparing their own Brexit contingency plans to understand what – if anything – they actually need to do about it. The good news is that even if the UK becomes a "third country", there are steps that businesses can take to avoid any interruption in the free flow of data, by having in place adequate safeguards. Businesses may be able to use binding corporate rules (BCRs), rely upon the EU model clauses or have specific agreements in place. Many large businesses with offices outside the EU already rely on group data sharing agreements that comply with these standards. For those businesses, it may simply be a case of checking that UK group companies are bound by these obligations in the same way as existing non-EU companies.  

We are working with a range of clients on such agreements, advising on maintaining data flows, drafting BCRs and checking contractual arrangements with suppliers, all of which might be impacted.  

Where you are sharing information outside of a group, for example, if you use a data processor in the UK to run payroll or undertake screening checks on your clients, then you will need to ensure that contracts are updated to incorporate the appropriate EU model clauses, or similar. There is no clear timetable at present as to when and in what form Brexit might actually happen, but once the position is clear, it will be essential to ensure that appropriate mechanisms are in place to ensure that data flows are not interrupted. 

On that merry note... Happy Data Protection Day!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions