Marketers want Britain to retain access to a ‘digital single market’ after Brexit

As Theresa May battles to push forward a Brexit deal, marketers are feeling the screws tighten on their ability to use data effectively.

A report from the Direct Marketing Association (DMA) makes plain the extent to which digital marketing services would be affected by no deal. Currently, 75% of the UK’s cross-border data flows are with the EU, and techUK’s statistics demonstrate that ‘digitally intensive’ sectors account for 24% of the UK’s total exports.

Consequently, the vast majority of the data and marketing industry is in favour of maintaining the status quo with regard to data flow between the UK and EU: 78% of UK marketers are in favour of adhering to the existing GDPR legislation.

The report states that “43% of all largest EU digital companies were started in the UK - cessation of free flow of data would have huge financial and administrative implications for such businesses.”

The current most likely means of ensuring continuity is by negotiating a withdrawal arrangement that allows the UK to apply for adequacy status: a mutual acknowledgement that a third country (such as a post-Brexit UK) adheres to the very high standards of personal data protection required by the EU.

Currently, the EU has awarded adequacy status to 11 countries, while both the USA and Canada have only been granted partial adequacy status. That, along with the fallout from the implementation of GDPR, has had implications on publishing and marketing companies on both sides of the Atlantic.

The government’s tabled Withdrawal Agreement would maintain that free flow of data. However, if the UK were to crash out without an agreement, or with an arrangement that does not protect, it would limit the country’s ability to attain adequacy status to protect the level of data flow it enjoys with the EU. Additionally, as the report from the DMA has made clear, those changes would come into effect immediately.

Nor is it guaranteed that the UK would automatically attain adequacy through its prior membership of the EU.

According to the Institute for Government, malfeasance from the UK government around the ‘Snoopers’ Charter’ counts against it: “The ECJ, which can strike down any adequacy decision approved by the Commission, has already ruled twice that the UK’s handling of personal data is not in line with EU law. One of these judgments was in response to a legal challenge originally brought by David Davis, before he was appointed Secretary of State for Exiting the EU.”

The report by the DMA states that an arrangement by which the UK’s Information Commissioner’s Office could remain a member of the European Data Protection Board (EDPB) be a means by which the UK could have mitigated the damage done by Brexit.

“The ICO had taken on a leading role within the EU as the most well-resourced data protection authority in Europe," it stated. "The ICO was responsible for leading on more briefs and guidance notes than most other regulators. The ICO are less reactionary than some other data protection authorities in Europe and so the UK’s pro-business voice will be sorely missed.”

However, at a May briefing to the 28th Congress of the International Federation for European Law Michael Barnier stated the EU could not and would not accept a member of a third country at any decision-making processes.

Consequently the DMA advises the UK government to “focus on working towards a new cooperative model for future relations between the ICO and the EDPB so the UK can continue to advise and assist European partners on data protection policy”.