Brexit business readiness brief for the UK advertising industry

Be Brexit-ready

With a high risk of a “no deal” exit from the European Union on October 31, the Advertising Association (AA) is urging the UK’s advertising and marketing services businesses to get Brexit-ready now.

The industry association says exiting the EU, particularly without an agreement, will have widespread implications for the industry across key areas including data, trade and talent.

“We need to ensure that the UK’s £24bn advertising industry – one that employs more than 350,000 people – is prepared, should the UK exit the EU on October 31,” AA chief executive Stephen Woodford says.

With just weeks to go, the AA has issued guidance around four core areas, detailed below, that will impact advertising and marketing services companies in the event of a no deal Brexit.

It covers advice for firms employing European nationals in UK offices, and what those employees should do if they want to remain resident in the UK either permanently or live and work in the country for a finite period of time longer than three months.

Data is also a major concern: but do not think that exiting the European Union means its General Data Protection Regulations (GDPR) are void.

All UK organisations receiving personal data from the European Economic Area (EEA) will remain bound by the rules, as well as the Data Protection Act 2018.

Under a no deal Brexit, the UK will overnight be considered a third country - and that means data flows between it and the EEA will be compromised, at least in the short term as a legal mechanism known as “data adequacy” will almost certainly not be in place immediately.

Come day one of a no deal Brexit, production companies looking to shoot in the EU could find themselves at the mercy of border controls. Under “temporary export” rules they may have difficulties transporting expensive equipment over the border. Anyone transporting samples, or promotional material to trade shows and conferences will also likely be hit by new temporary export restrictions.

However, the AA has warned against both panic and complacency. Below it summarises the steps that affected businesses and individuals should take to best prepare for a no deal Brexit.

The EU Settlement Scheme

The UK has set up a new scheme to allow EU citizens, already living and working in the UK to stay beyond Brexit. The free scheme enables EU, EEA and Swiss citizens resident in the UK, and their family members, to obtain the status they require in order to live and work in the UK after June 30, 2021. In the event of a no deal exit, they will need to obtain it by December 31, 2020.

Applicants only need to complete three key steps – prove their identity, show that that they live in the UK, and declare any criminal convictions. They can verify in person in over 80 locations, via post or through the Identity Document Check App, currently only available on Android. There is a dedicated support line on 0300 123 7379 or via www.gov.uk/brexit.

Applicants can have their passport scanned and verified in over 80 places across the UK, via the Identity Document Check App (currently only available on Android) or through the post.

“Given the uncertainty over whether Freedom of Movement will end if the UK leaves the EU without a deal, we recommend engaging with your EU/EEA colleagues and encouraging them to apply for the EU Settlement Scheme sooner rather than later,” advises AA Strategic Policy Advisor Konrad Shek.

After Brexit: EU, EEA and Swiss citizens staying in the UK longer than 3 months

If the UK leaves the EU without a deal, the UK government has said it intends to end freedom of movement as soon as possible. There may be a transition period between the end of freedom of movement and the introduction of the new skills-based immigration system, which is expected to launch in January 2021.

After Brexit, EU, EEA and Swiss citizens will not need a visa for the UK for stays up to three months, even in the event of a no-deal Brexit. However, those citizens wanting to live, work and study in the UK for longer periods, between three and 36 months, they will need to apply for “European Temporary Leave to Remain” during this transition period. This will not apply to Irish citizens, as they are covered under the Common Travel Area.

Data and a No Deal Brexit

If your organisation receives personal data from the EEA, you will still need to abide by both GDPR and the Data Protection Act 2018 even after Brexit.

The EU uses a legal mechanism called data adequacy to allow the transfer of personal data from the EEA to a third country. The UK government has announced that it will allow the flow of personal data to the EEA regardless of a deal being in place and will recognise existing European Commission data adequacy decisions. However, the EU has not yet made a similar commitment towards the UK. Hence, if we leave the EU without a deal, it is highly unlikely that we will have a data adequacy decision in place.

What this means in a practical and legal sense is that if you are based in the UK, data can flow unrestricted to the EEA but not the other way round.

If your company receives personal data from other countries, in particular the EEA, it is important that you have contingencies in place so that you can continue receiving personal data lawfully after the UK exits the EU. The main contingencies are implementing standard contractual clauses and binding corporate rules. There are other possible actions required concerning appointing a data representative, identifying your lead data protection authority in the EEA and if you send data to the US under the US Privacy Shield.

The Association recommends mapping your data flows and seeking legal advice. The ICO, the UK’s data protection authority, also has a page dedicated to Brexit that covers the implications for data protection and data transfers in more detail.

Temporary Exports and a No Deal Export

Production companies that film on location in other EU countries and need to take very expensive professional equipment with them may find obstacles at the EU border on day one after a no-deal Brexit. It is important to bear in mind that temporarily moving high value equipment for filming on location or taking promotional material to a trade show from the UK to another country is considered a temporary export. At the moment there is no restriction of temporary export of such goods within the EU, but this will likely change if the UK leaves the EU without a deal.

Applying for an ATA Carnet may be the best route for UK companies to temporarily export their goods; without one it would be necessary to go through each country’s customs procedures and may require lodging a temporary import bond. Carnets can be bought in the UK from the London Chamber of Industry and Commerce and its regional offices, online or by post.

While all parts of business will be affected by a no deal Brexit, the marketing and advertising industries are likely to be hit hard. However, by preparing early and for the worst case scenarios, companies can ensure they are operating within the rules - and guard themselves against undue delays or expensive mistakes.

More detailed information on how advertising and marketing communications firms can protect data, trade and talent in the event of a no deal Brexit is available on the Advertising Association’s website at www.adassoc.org.uk/policy-areas-category/brexit/ .

Edit: At time of publication there had been no amendment to the proposed date of Brexit.

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