United Kingdom

Over the past few months, there have been several notable developments in the cross-border data frameworks of the U.S., EU, UK, Brazil, and several Asia Pacific (“APAC”) countries. These developments reflect evolving regulatory approaches to international data flows, trade agreements, and national security priorities—each with certain nuances and particularities that multinational companies need to understand and be prepared to navigate. 

This blog post provides a brief summary of these developments and key takeaways for companies transferring personal data to or from these jurisdictions. Continue Reading Roundup of Cross-Border Data Transfer Developments

The UK Government has announced that it intends to introduce the Cyber Security and Resilience Bill (the “Bill”) to Parliament in 2025. Formally proposed as part of the King’s Speech in July, this Bill is intended to strengthen the UK’s cross-sectoral cyber security legislation to better protect the UK’s economy and infrastructure. This Bill will update the existing NIS Regulations, which derive from EU law. Part of the UK Government’s motivation seems to be to keep pace with updates to EU law in this area, specifically relating to the NIS2 Directive that starts to apply this month (see our blog post on this, here).Continue Reading What to expect from the UK’s Cyber Security and Resilience Bill (and when)

On 6 March 2024, the ICO issued a call for views on so-called “Consent or pay” models, where a user of a service has the option to consent to processing of their data for one or more purposes (typically targeted advertising), or pay a (higher) fee to access the service without their data being processed for those purposes. This is sometimes referred to as “pay or okay”.

The ICO has provided an “initial view” of these models, stating that UK data protection law does not outright prohibit them. It also sets out factors to consider when implementing these models and welcomes the views of publishers, advertisers, intermediaries, civil society, academia and other interested stakeholders. The consultation is open until 17 April 2024.Continue Reading UK ICO Launches a Consultation on “Consent or Pay” Business Models

On 15 January 2024, the UK’s Information Commissioner’s Office (“ICO”) announced the launch of a consultation series (“Consultation”) on how elements of data protection law apply to the development and use of generative AI (“GenAI”). For the purposes of the Consultation, GenAI refers to “AI models that can create new content e.g., text, computer code, audio, music, images, and videos”.

As part of the Consultation, the ICO will publish a series of chapters over the coming months outlining their thinking on how the UK GDPR and Part 2 of the Data Protection Act 2018 apply to the development and use of GenAI. The first chapter, published in tandem with the Consultation’s announcement, covers the lawful basis, under UK data protection law, for web scraping of personal data to train GenAI models. Interested stakeholders are invited to provide feedback to the ICO by 1 March 2024.Continue Reading ICO Launches Consultation Series on Generative AI

On 3 October 2023, the UK Information Commissioner’s Office (“ICO”) finalized its Employment practices and data protection − Monitoring workers guidance (“Guidance”) to account for new types of work, including work from home, and the use of more sophisticated technologies for monitoring. In November 2022, we published a detailed blog post on the ICO’s public consultation.

The finalized Guidance is aimed at employers. It does not prevent employers from engaging in monitoring; rather, it sets out how they can do so in compliance with data protection law.  The Guidance defines “monitoring workers” as “any form of monitoring of people who carry out work on [an employer’s] behalf” and can include “monitoring workers on particular work premises or elsewhere” both during and outside working hours. The Guidance is clear that it applies to homeworking.  It also applies to a range of monitoring technologies and purposes, including (but not limited to) technologies for monitoring timekeeping or access control; keystroke monitoring to track, capture and log keyboard activity; and productivity tools which log how workers spend their time.Continue Reading UK Information Commissioner’s Office Releases New Guidance for Monitoring at Work

On 12 September 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (“NCSC”), Lindy Cameron, signed a joint memorandum of understanding (“MoU”) detailing how the Information Commissioner’s Office (“ICO”) and NCSC will work together moving forward.

The MoU does not create legally binding obligations between the ICO and NCSC, but provides a strong signal of intent for areas of cooperation.  The statements about information sharing and engaging with NCSC leading to potentially reduced fines under the UK GDPR are likely to be of particular interest to commercial organizations.Continue Reading ICO Encourages Organizations To Cooperate with NCSC and Flags Potential Reduction in Fines

On 29 March 2023, the UK Information Commissioner’s Office (“ICO”) published updated Guidance on AI and data protection (the “Guidance”) following “requests from UK industry to clarify requirements for fairness in AI”. AI has been a strategic priority for the ICO for several years. In 2020, the ICO published its first set of guidance on AI (as discussed in our blog post here) which it complemented with supplementary recommendations on Explaining Decisions Made with AI and an AI and Data Protection risk toolkit in 2022. The updated Guidance forms part of the UK’s wider efforts to adopt a “pro-innovation” approach to AI regulation which will require existing regulators to take responsibility for promoting and overseeing responsible AI within their sectors (for further information on the UK Government’s approach to AI regulation, see our blog post here).

The updated Guidance covers the ICO’s view of best practice for data protection-compliant AI, as well as how the ICO interprets data protection law in the context of AI systems that process personal data. The Guidance has been restructured in line with the UK GDPR’s data protection principles, and features new content, including guidance on fairness, transparency, lawfulness and accountability when using AI systems.Continue Reading UK ICO Updates Guidance on Artificial Intelligence and Data Protection

The UK Information Commissioner’s Office (“ICO”) recently published detailed draft guidance on what “likely to be accessed” by children means in the context of its Age-Appropriate Design Code (“Code”), which came into force on September 2, 2020. The Code applies to online services “likely to be accessed by children” in the UK. “Children” are individuals under the age of 18. In order to determine whether an online service is “likely to be accessed” by children, companies must assess whether the nature and content of the service has “particular appeal for children” and “the way in which the service was accessed”. This new draft guidance provides further assistance on how to make this assessment, and is undergoing a public consultation until May 19, 2023.Continue Reading UK ICO Provides Guidance On When A Service Is “Likely To Be Accessed By Children” And Needs To Comply With Its Age-Appropriate Design Code

On 18 July 2022, following its recent response to the public consultation on the reform of UK data protection law (see our blog post on the response here), the UK Government introduced its draft Data Protection and Digital Information Bill (the “Bill”) to the House of Commons.

The Bill is 192 pages, and contains 113 sections and 13 Schedules, which amend and sit alongside existing law (the UK GDPR, Data Protection Act 2018 (“DPA”), Privacy and Electronic Communications Regulations 2003 (“PECR”), the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, etc.). Some readers’ immediate reaction might be to query whether the Bill will simplify the legislative framework for businesses operating in the UK and facilitate the goal of the Information Commissioner to provide “certainty” for businesses. Time will tell. The Government’s publication of a Keeling Schedule (essentially a redline of the UK GDPR and DPA 2018 showing the changes resulting from the Bill), expected in the Autumn, will be welcome.

Much of the content of the Bill was previewed in the Government’s consultation response and include proposed changes that are designed to try to reduce the administrative burden on business to some extent.  The Bill is by no means a radical departure from existing law, however, and in some key areas – such as data transfers – the law will essentially remain the same.  But we now have additional important details on proposed changes to UK data protection law, and we set out in this post our immediate thoughts on some details that are worth highlighting.Continue Reading A Cautious Approach: the UK Government’s Data Protection and Digital Information Bill

In October 2019, the UK and U.S. Governments signed an agreement on cross-border law enforcement demands for data from Communication Service Providers (the “Agreement”, which we described in our earlier post here). Only now, however, have the two countries completed the procedural steps required to bring the Agreement into…

Continue Reading UK and U.S. Governments set a date for the entry into force of the UK-U.S. CLOUD Act Agreement