UK privacy law update: Proposed changes to UK GDPR / Data Protection Act

Four years after Brexit, the UK’s data protection laws are being reviewed by the UK Government again – mostly to ensure it can govern data rights in the country under UK law, rather than deferring to EU law.

There is some urgency among UK lawmakers to drive these changes since the Retained EU Law (Revocation and Reform) Act 2023 became law on January 1, 2024, removing some post-Brexit obligations under European Union law as applied to the UK GDPR and UK Data Protection Act.

The UK Department for Science, Innovation and Technology (DSIT) highlighted this change in its draft Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023, published on September 11, 2023.

In its explanatory note accompanying the draft, DSIT stated the regulations will:

• “revoke and replace Article 4(28) of the UK General Data Protection Regulation and section 205(1A) of the Data Protection Act 2018 which relate to the meaning of references to fundamental rights and fundamental freedoms in data protection legislation”; and
• “insert new definitions of fundamental rights and fundamental freedoms into the UK GDPR and DPA 2018 so that after the end of 2023 … [these references] … will be references to rights under the European Convention on Human Rights within the meaning of the Human Rights Act 1998.”

UK Data Protection laws in the 21st century

The UK Government has enforced data privacy and protection under three main sets of laws this century:

1. Privacy and Electronic Communications Regulations 2003, which came into force on December 11, 2003, and focus on data confidentially and the consequences of data breaches.
2. UK General Data Protection Regulation (UK GDPR), which became law on April 27, 2016, a few months after the introduction of the EU General Data Protection Regulation (EU GDPR) and became applicable on January 1, 2021. The UK GDPR mostly reflects fundamental personal data rights covered in the EU GDPR, though narrows their application to UK-based organizations and organizations outside the UK that process UK citizens’ personal data.
3. UK Data Protection Act 2018 (DPA), which replaced the UK’s original DPA (passed in 1988, updated in 1998) and augments UK citizens’ privacy rights under GDPR with stronger rules around specific categories of personal information such as ethnic background, political opinions and health.

Amendments to data protection laws in the UK are being reviewed by Parliament under a proposed bill titled Data Protection and Digital Information Bill (No.2).

Bill to amend UK GDPR intends to ‘cut paperwork’

The UK Parliament’s Data Protection and Digital Information Bill (No.2) is the second recent attempt in the UK Parliament to bring data rights under UK law, rather than EU law.

The original version of the Data Protection and Digital Information Bill was introduced in the House of Commons on July 18, 2022, and stalled for several months.

That proposed Bill was then withdrawn so the updated version could be introduced on March 8, 2023.

Later that day, the UK Information Commissioner Office issued a press release about the Data Protection and Digital Information Bill (No.2) headlined “British Businesses to Save Billions Under New UK Version of GDPR”, with the subheading promising “New data laws to cut down pointless paperwork for businesses and reduce annoying cookie pop-ups”.

While there is a proposal to reduce some requirements for cookie consent pop-ups, the Bill also proposes tougher penalties for ‘nuisance’ calls and texts up to £17.5 million or 4% of global turnover, whichever is greater.

UK Information Commissioner John Edwards said he welcomed the reintroduction of the Bill and supported its ambition “to enable organizations to grow and innovate whilst maintaining high standards of data protection rights”, adding “data protection law needs to give people confidence to share their information to use the products and services that power our economy and society”.

On the later aim – to give people the confidence to share their information – the Bill contains a commitment to establish a digital verification service framework so individuals can more easily and safely prove their identity digitally, and thus speed up their interactions with organizations.

Further amendments to the Data Protection and Digital Information Bill (No.2) were proposed in November and December 2023. Edwards released new commentary on the Bill on December 19, 2023.

He continues to seek changes to the text such as:

• improving several definitions, particularly for activities considered ‘high-risk processing’;
• greater independence for the ICO (“namely removing the Secretary of State approval over statutory ICO codes”);
• updating rules about the ICO’s activities to allow the Office to serve information, enforcement and penalty notices electronically;
• extending the reporting period for personal data breaches under Privacy and Electronic Communications Regulations from 24 to 72 hours (aligned with UK GDPR);
• tightening rules around processing data when used for government audits or investigations of individuals, especially related to tax and social security – Edwards notes stronger safeguards are needed to protect individuals against arbitrary interference with their rights; and
• clarifying rules for businesses responding to subject access requests to reduce ‘vexatious’ requests and organizations only need to run ‘reasonable and proportionate searches’.

Overview of key proposed amendments to UK GDPR

The UK Information Commissioner’s Office media releases state the Data Protection and Digital Information Bill’s proposed amendments to UK data protection laws will “introduce a simple, clear and business-friendly framework that will not be difficult or costly to implement”.

The intents and claims for these amendments are summarized below.

1. Simpler UK GDPR compliance

Proponents of the amendments claim they will ‘cut pointless paperwork’ in current UK data protection laws by giving organizations more flexibility over how they meet compliance requirements. The changes especially target reporting requirements under UK GDPR, which the Information Commissioner’s Officer noted were based on the existing EU GDPR’s “highly prescriptive, top-down approach to data protection regulation which can limit organizations’ flexibility to manage risks and places disproportionate burdens on small businesses.”

However, there is a caveat: organizations will need to appoint a member of senior management as ‘Senior Person Responsible’, a role which effectively replaces the previously required role of Data Protection Officer.

Claimed benefits: organizations will only need to maintain records of processing activities for personal data if those processing activities “pose high risks to individuals’ rights and freedoms”.

2. Continued compliance for international data transfers

The ICO states the reforms are also intended to ensure the UK maintains data adequacy with the EU and build international confidence in the UK’s data protection standards to support “the free flow of personal data between like-minded countries”.

Claimed benefits: businesses operating in the UK that are already compliant with existing UK data laws will be allowed to continue using their existing international data transfer mechanisms to share personal data overseas. The ICO says “This will ensure British businesses do not need to pay more costs or complete new checks to show they’re compliant with the updated rules”.

[See section below: UK-US Data Bridge: International Data Transfer Adequacy]

3. Permitted processing of personal data without consent

Organizations have always had to weigh their interests in collecting personal data against individuals’ privacy rights; the amendments provide some leeway for the collection of personal data if the insights from that data are in the public interest.

Claimed benefits: organizations may collect personal data without needing consent where they can prove collection and sharing of that data is necessary to “prevent crime, safeguard national security or protect vulnerable individuals”.

4. Broader definition of scientific research

The ICO states “current data laws are unclear on how scientists can process personal data for research purposes, which holds them back from completing vital research that can improve the lives of people across the country”. The new Bill proposes an updated definition giving commercial organizations similar freedoms as academics to collect and use/reuse data for scientific research.

Claimed benefits: the Bill proposes reducing paperwork and legal costs for researchers, which the ICO claims will “encourage more scientific research in the commercial sector”. The new Bill contains a non-exhaustive definition of scientific research which remains any processing that “could reasonably be described as scientific and could include activities such as innovative research into technological development”.

5. Safeguards applied to AI

The ICO notes the current data protection laws in the UK are “complex and lack clarity for solely automated decision-making and profiling which makes it difficult for organizations to responsibly use these types of technologies”. The new Bill clarifies rules for businesses using automated decision-making. It includes requirements for businesses to make people aware they may be subject to automated decisions, explain the reason/s for processing, and notify them of their rights, including rights to “challenge and seek human review when those decisions may be inaccurate or harmful”.

Claimed benefits: the ICO says these updated rules will “Increase public and business confidence in AI technologies”, while giving businesses, AI developers, and individuals “greater clarity about when these important safeguards for solely automated decision-making must apply”.

Amendments focused on national security

A UK Government press release published on November 23, 2023, claimed a handful of proposed changes to the Bill “will safeguard the public, prevent fraud, and unlock post-Brexit opportunities”.

The main changes sought by the Government are:

• Access to targeted individuals’ financial activities data – giving government agencies new powers to require data from third parties (such as banks and other financial institutions), which could be used to help identify fraud; and
• Retention of targeted individuals’ biometrics data – allowing national security agencies (such as Counter Terrorism Police) to keep for longer the biometric data of individuals identified by an agency as ‘posing a potential threat to national security’. This update brings retention of biometric data such as fingerprints in line with INTERPOL’s data retention rules.

Although the UK GDPR isn’t being revoked by the Retained EU Law Act, it will be more tightly interpreted through UK case law, rather than EU case law.

In the EU, while each member state can pass legislation permitting some exemptions to personal data rights in cases of national security, the EU GDPR contains stronger safeguards for individual rights versus government organizations’ interests.

The proposed changes to UK data privacy and protection law generally keep many of the UK GDPR’s data protection principles that apply to all organizations processing personal data in the UK.

When the UK GDPR came into effect it carved out greater national security exemptions from some data protection rules around the collection, processing, and use of personal information than those allowed under the EU GDPR.

These carveouts for intelligence services, immigration control, and national security effectively limit personal data rights for citizens when government organizations choose to apply them.

UK-US Data Bridge: International data transfer adequacy

The UK extension to the EU-US Data Privacy Framework came into force on October 12, 2023, which allows certified organizations in the US to transfer the personal data of UK citizens more readily. It replaces previous requirements for safeguards such as international data transfer agreements or contract clauses.

The UK-US Data Bridge was established on September 21, 2023, by the UK Secretary of State for Science, Innovation, and Technology, the Rt Hon Michelle Donelan MP. The Secretary for State also laid adequacy regulations in Parliament, supported by the US Attorney General’s decision on September 18, 2023, to designate the UK as a ‘qualifying state’.

To use the UK-US Data Bridge organizations must prove compliance with UK GDPR rules on the protection of UK citizens’ personal data and gain certification to the Data Privacy Framework (DPF) list.

Demonstrating DPF verification is critical for your global compliance and data transfer mechanisms and includes:

• Privacy-compliant data flows
• Operationalizing data mechanisms for accountability, such as strong privacy notices
• Verified seal to show the organization has met compliance requirements and is committed to protecting personal data and privacy.