Brexit, data protection and the Digital Single Market

The people have collectively spoken and now policy makers need to forge a path forward that honours the will of the people, while also ensuring the UK’s access to the all important EU economic market – especially the digital market and this is no easy task.

The UK’s decision to leave the European Union comes just on the heels of the passage of the EU’s General Data Protection Regulation (GDPR), a massive piece of legislation that aims to give control over personal data back to the individual through a series of new codified rights.

The GDPR is a pan-European law that will add certainty for companies selling their wares to EU citizens.

More importantly, it is the foundation of the Digital Single Market, a strategic European initiative that aims to create fertile conditions for European-based innovation that will add billions of Euros to the overall economy, the UK included, while creating countless jobs.

As well as increasing access to goods and services, the Digital Single Market will also improve networks and drive economic growth

The UK’s pending exit from the EU puts it at risk of not participating in the Digital Single Market unless another option can be implemented.

Here are three possible paths forward, none of them straightforward, but paths nonetheless.

Three paths forward

1. UK adopts GDPR

The UK can adopt the GDPR as its own national data protection legislation, but then would still be left with the dystopian act of applying – upon a politically bended knee – to the EU to be granted “adequacy” status, which is legal jargon recognising that your data protection law offers the equivalent level of protection that the GDPR provides.

If you receive “adequacy”, as countries like Canada and Argentina have been granted, then data can flow between the two economies freely.

At issue is whether political egos will get in the way of applying for “adequacy” designation, and that is impossible to predict.

2. Be Switzerland 

A second path forward would be for the UK to follow the Swiss model and negotiate a series of critical trade agreements with the EU that will allow the UK access to the EU digital market.

While a series of one-off trade agreements may require a lot of heavy lifting and must be done quickly, it is important to remember that reciprocal access by the EU to the UK economy, the second largest in the EU after Germany, is important to the EU.

3. EEA Membership

A third path forward may be the simplest and could represent a balanced approach that would both honour the collective will of UK citizens, while still providing access to the EU Digital Single Market.

Namely, the UK could apply to become part of the European Economic Area (EEA), a 1994 agreement that opens the EU market to non-member states under certain situations.

Norway is the prime example, but there are technical considerations that I am not qualified to comment on that still must be met before a country can join the EEA, and like the first option, could result in an unbalanced relationship since membership is contingent upon meeting EU mandated and monitored requirements.

Riveting but serious 

The UK political theatre playing out in front of us is riveting, especially for an American privacy wonk such as myself.

But its entertainment value is far outweighed by the economic seriousness that portent if cool heads don’t negotiate a way forward.

I know some of these cool heads, both in London and Brussels, and am confident that they will find that path forward that honours the democratic will of the referendum, while also fostering conditions for joint economic prosperity.

It’s in everyone’s best interest.

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