In recent weeks the future of data protection law in the UK has been not just hard to predict, but also hard to keep up with.
Since Brexit, the UK has had its own version of the EU’s GDPR, called, obviously enough, the “UK GDPR“. Then, on 18 July, a Data Protection and Digital Information Bill was presented in Parliament – it proposed some significant (but possibly not hugely so) changes to the current regime, but it retained the UK GDPR. It was scheduled to have its second reading in the House of Commons on 5 September, but this was postponed “to allow Ministers to consider the legislation further”.
Following this, on 22 September, the Retained EU Law (Revocation and Reform) Bill was introduced. This appeared to propose the “sunsetting” (i.e. the repeal) of multiple data and information laws, including the UK GDPR, by the end of 2023.
The next development, on the first day of the Conservative Party conference, is the announcement by the Culture Secretary, Michelle Donelan, that
we will be replacing GDPR with our own business and consumer-friendly data protection system… Many…smaller organisations and businesses only in fact employ a few people. They don’t have the resources or money to negotiate the regulatory minefield that is GDPR. Yet right now, in the main, they’re forced to follow this one-size-fits-all approach.
She also suggested that businesses had suffered from an 8% reduction in profit from GDPR. It is not immediately clear where this figure comes from, although some have suggested that an Oxford Martin School paper is the source. This paper contains some remarkably complex equations. I have no competence in assessing, and no reason to doubt, the authors’ economic and statistical prowess, but I can say (with a nod to the ageless concept of “garbage in, garbage out”) that their understanding of data protection law is so flawed as to compromise the whole paper. They say, for instance
websites are prohibited from sharing user data with third parties, without the consent from each user
companies that target EU residents are required to encrypt and anonymise any personal data it [sic] stores
and (probably most bizarrely)
as users incur a cost when prompted to give consent to using their data, they might reduce online purchases, leading to lower sales
To be quite clear (as politicians are fond of saying): websites are not prohibited from sharing data without the consent from “users” (if they were, most ecommerce would grind to a halt, and the internet economy would collapse); companies subject to GDPR are not required to anonymise personal data they store (if they did, they would no longer be able to operate, leading to the collapse of the economy in general); and “users” do not have to consent to the use of their data, and I am still scratching my head at why even if they did they would incur a cost.
If the authors base their findings on the economic cost of GDPR on these bases, then there are some very big questions for them to answer from anyone reviewing their paper.
I may have the wrong paper: I actually really hope the government will back up its 8% figure with something more sensible.
But regardless of the economic thinking this paper, or underpinning the developments in the statutory regime, it is possible that all the developments cohere: that the Data Protection and Digital Information Bill, when it re-emerges, will have been amended so as to have the effect of removing references to “GDPR” or the “UK GDPR”, and that this will mean that, in substance, if not in name, the principles of the UK GDPR are assimilated into a new piece of domestic legislation.
But (given that the government’s focus is on it) business, just as nature, abhors a vacuum – many business owners (and indeed many data protection practitioners) must be hoping that there is a clear route forward so that the UK’s data protection regime can be considered, and applied, with at least a degree of certainty.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.