The General Data Protection Regulation (GDPR) and Data Protection Act 2018 affect how you as a website owner must obtain and store cookie consents from your visitors from the UK & EU.
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Updated April 21, 2021.
The Data Protection Act 2018 (DPA ACT) is a domestic law governing the use of personal data and the flow of information in the United Kingdom.
The UK is no longer part of the EU and a new and amended Data Protection Act has taken effect.
In this article, we dive into the Data Protection Act 2018 – what does the law say and how has it changed after Brexit?
The UK is no longer part of the European Union.
This means changes to the legal landscape of data privacy and protection in the United Kingdom.
The UK Data Protection Act 2018 was actually passed in April 2016 and took effect (received Royal Assent) on May 25, 2018 – the same day as the European General Data Protection Regulation (GDPR) went into effect.
This is no coincidence.
The UK Data Protection Act was passed before the Brexit referendum later that summer and is in fact constructed around and meant to be read in conjunction with the EU GDPR, that has uniform authority over all member states.
However, since the UK is no longer part of the EU, the European GDPR no longer has application domestically in the United Kingdom, and so the Data Protection Act of 2018 has been amended to accommodate the post-Brexit changes to UK data privacy law that have taken place.
After Brexit, the UK Data Protection Act no longer refers to the EU’s GDPR, but to the UK-GDPR.
Here are the overall changes to UK data privacy law after Brexit –
Learn more about EU’s GDPR and compliance
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The UK has been protected and regulated by the EU’s GDPR since May 2018, but now that the country has left the EU, it has its own, equivalent set of data protection legislation.
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Under the new UK-GDPR and the amended UK Data Protection Act, users in the United Kingdom will have the same rights as users in the EU, and websites, companies and organizations who collect or process data of users in the UK will have to comply by the same requirements as those set out by the EU GDPR.
Protecting users in the UK after Brexit requires the same insight, transparency and control of what happens on your website as before.
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Learn more about GDPR and consent
The Data Protection Act 2018 is the UK’s third generation of data protection legislation. It replaces the previous 1998 law by the same name and modernizes the country’s legal framework in response to new technologies.
Brexit means an amended Data Protection Act 2018 in the UK.
The Data Protection Act 2018 contains four parts that create four different “data protection regimes” within the UK:
The general processing regime found in Part 2, Chapter 2 of the Data Protection Act appropriates and supplements the EU GDPR.
Most of the processing of personal data is subject to the EU GDPR, and so the Data Protection Act refers to the GDPR’s most central provisions for the protection of personal data.
These include –
The Data Protection Act 2018 also adopts the central definitions of the EU GDPR, such as:
The UK Data Protection Act 2018 supports the domestic UK-GDPR instead of the EU’s GDPR.
Apart from referring to the UK-GDPR instead of the EU’s GDPR (since the UK has left the EU), the Data Protection Act 2018 creates additional provisions to the processing of personal data that goes beyond both the UK-GDPR and the EU’s GDPR.
These are mostly found in the area of national security, law enforcement and immigration.
In the area of national security, which lies outside the scope of the EU GDPR, the Data Protection Act applies the same requirements for personal data processing to the UK intelligence services.
In the area of immigration, the Data Protection Act grants the UK Home Office the power to refuse personal data access requests based on the risk it could pose to immigration enforcement.
In addition, the Data Protection Act frames the role – jurisdiction, function and powers – of the Information Commissioner (ICO) as the leading data protection authority (DPA) in the UK.
Read the Data Protection Act 2018 law text here (pdf)
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Now that Brexit has happened, several legal changes has taken effect in the area of data protection.
An interim period of six months (until June 2021) has been agreed to by both the UK and EU, and ensures the free flow of data between the two blocs.
The EU Withdrawal Agreement that took effect on Exit Day specifies that the UK “shall ensure a level of protection of personal data essentially equivalent to that under Union law” (Article 71).
This is important because of Article 45 in the European GDPR, which requires countries that are not part of the EU to have an adequate level of domestic data protection laws in order to ensure a free flow of information to and from the EU.
The UK Data Protection Act 2018 supports the domestic UK-GDPR instead of the EU’s GDPR.
The UK must receive and adequacy agreement from the EU before the end of the interim period, or it will be ranked as a third country under the GDPR, restricting data transfers to and from the EU.
This will mean that the EU, according to its GDPR, will deem the UK unsafe for European personal data to be sent to.
In February 2021, the EU Commission released a draft UK adequacy decision that would grant the United Kingdom a special time-limited four-year adequacy status that, if adopted, would ensure unrestricted data flows between the EU and UK until 2025.
The adequacy decision can be renewed if the UK proves to still have an adequate level of data protection in four years.
In April 2021, the European Data Protection Board (EDPB) released an opinion backing up the EU Commission’s draft adequacy agreement, noting the key areas of strong alignment between the EU and UK data protection frameworks and embracing the four year time-limitation of the adequacy decision.
Amending the Data Protection Act 2018 and creating the domestic UK-GDPR is believed to be enough to be granted an adequacy decision from the EU before June 2021.
The UK-GDPR (United Kingdom General Data Protection Regulation) is in effect in the UK and will be read in conjunction with the newly amended Data Protection Act 2018 (DPA 2018).
The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (DPPEC Regulations) is the statutory instrument amending both the GDPR (turning it into the new UK-GDPR) and the Data Protection Act 2018.
Read the DPPEC regulations here.
The most important amendments to the Data Protection Act include:
New data protection laws in the UK took effect on Exit Day January 31, 2020.
These DPPEC Regulations can be viewed in the following Keeling Schedules showing the changes that took effect on Exit Day (January 31, 2020).
Keeling Schedule for the amendments to the Data Protection Act 2018.
Keeling Schedule for the creation of the new UK-GDPR.
The Data Protection Act 2018 is the UK’s third generation of data protection laws. The Data Protection Act was passed in 2016 and took effect on May 25, 2018 – the same day as the EU’s General Data Protection Regulation (GDPR). The DPA 2018 was meant to be read in conjunction with the EU’s GDPR, but was amended in 2019 because of Brexit.
Learn more about Brexit and GDPR
Brexit means overall changes to UK data privacy law. The EU’s GDPR has been amended into a new UK-GDPR that the amended Data Protection Act 2018 now must be read in conjunction with. An interim period of six months (until June 2021) ensures free data flow between the UK and EU, but the UK-GDPR, Data Protection Act 2018 and PECR governs all data processing domestically, also after Brexit.
Learn more about GDPR in the UK
The UK-GDPR is the United Kingdom’s domestic General Data Protection Regulation that will replace its European equivalent when the country finally and formally leaves the bloc by the end of the transition phase. The UK-GDPR mirrors the GDPR in its substance and scope.
Your website must ask for and obtain the consent of users before processing their personal data. If your website uses third-party cookies, you need to implement a consent management solution that ensures that these cookies and trackers are not activated to process personal data before users have given their explicit consent to do so.
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ICO statement on the interim period of data flow until June 2021
EU Commission draft UK adequacy decision from February 2021
European Data Protection Board (EDPB) opinion on the draft UK adequacy decision
EU Parliament report on private-sector data flows between EU and UK
The new and amended Data Protection Act 2018 (DPA ACT) (Keeling Schedule)
The new UK-GDPR (Keeling Schedule)
Information Commissioner’s Office (ICO), the lead enforcer of DPA in UK
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