EDPB and ICO respond to the Brexit data transfer window

As most in the data community are aware, the EU-UK Trade and Cooperation Agreement (the “Brexit Deal”) was agreed on Christmas Eve and provides for an interim period (up to a maximum of six months ending on 30 June 2021) whereby data transfers from Europe to the UK will not be treated as transfers to a third country subject to Chapter V of the GDPR following the end of the transition period on 1 January 2021, provided the UK complies with certain conditions during the interim period (discussed in our blog here).

Following this, both the European Data Protection Board (“EDPB”) and the UK’s supervisory authority (the Information Commissioner’s Office (“ICO”)) have issued either updated or new responses which provide some more clarity on areas of focus and what to expect over the coming year.

The EDPB’s Response

Prior to the Brexit Deal being agreed, in mid-December the EDPB adopted its ‘Statement on the end of the Brexit transition period’ (here) (the “Statement”) and an ‘Information note on data transfers under the GDPR to the United Kingdom after the transition period’ (here) (the “Information Note”) which highlighted some key considerations of the EDPB.

Following the agreement and implementation of the Brexit Deal from the beginning of 2021, the EDPB has now updated the Statement and Information Note.

  • The interim data transfer window

In line with Article FINPROV.10A of the Brexit Deal, the update to the Statement and Information Note emphasises that data transfers to the UK can continue to take place without the requirement of a transfer tool under Article 46, or relying on the derogations list under Article 49, until 30 June 2021 (at the latest) provided that the UK’s current data protection regime stays in place.

  • Preparing for an adequacy decision (or lack of one)

The EDPB provides no further view on the adequacy of the UK’s data protection regime other than that the timeline for a favourable decision has now been pushed to the end of June. If a favourable adequacy decision is not taken by 30 June 2021, the EDPB emphasises in the Statement and Information Note that transfers between entities regulated by the GDPR to the UK will become subject to Chapter V of the GDPR. This will mean that transfers to the UK will require adequate safeguards such as standard data protection clauses, binding corporate rules, intra-group agreements, codes of conduct etc. to be put in place along with ensuring enforceable data subject rights and effective legal remedies for data subjects as required by Article 46.

The Information Note further reminds controllers and processors that, absent an adequacy decision, from the end of the interim period compliance with other GDPR obligations will come into sharper focus, including:

    • updating privacy notices and records of processing to account for data transfers to the UK;
    • taking caution if intending to rely on grounds under Article 49 in the absence of safeguards under Article 46, as such grounds are to be interpreted restrictively, only being fit for occasional and non-repetitive transfers; and
    • considering whether any supplementary tools may need to be put in place, a relatively complex and time-consuming consideration discussed further here (albeit the fact that the UK’s data law is the application of the GDPR then such consideration should theoretically be straightforward).
  • One-Stop-Shop mechanism

While not affected by the EDPB’s updates, it is worth noting that the Statement and Information Note also clarify the applicability of the One-Stop-Shop (“OSS”) mechanism envisioned by the GDPR within the UK.

The OSS mechanism provides that the supervisory authority in the jurisdiction of an entity’s main establishment will act as the lead supervisory authority and carry out compliance and regulatory functions on behalf of supervisory authorities in each EU jurisdiction in relation to that entity.

From 1 January 2021, the OSS will not apply in the UK so that the ICO will not be able to act as a lead supervisory authority (i.e. the Brexit Deal did not extend this mechanism). The EDPB notes that it has engaged with supervisory authorities and the ICO to ensure a smooth transition of existing cross-border cases.

The Statement and Information Note goes on to remind controllers and processors that they remain free to establish a main establishment in an EU jurisdiction under Article 4(16) to utilise the OSS mechanism (although the feasibility of this for many entities may well be impracticable). If this is not in place, entities will need to designate a representative under Article 27 as long as their activities are subject to the GDPR under Article 3(2).

The ICO’s Response

In a blog posted on 22nd January (here), the ICO’s Information Commission Elizabeth Denham responded to the Brexit Deal (the “ICO Response”) by welcoming the long-term commitments made by the EU and UK, most notably, to promoting high international standards of data protection, developing a regulatory relationship, and co-operating on enforcement activity.

The ICO Response considered the interim period allowing data transfers between Europe and the UK as the “best possible outcome for UK organisations” in light of the risks and impacts to digital trade if this had not been put in place. However, given this interim period will end in either four or six months under the Brexit Deal, the importance of a positive adequacy decision for UK data flows is clear in the ICO Response, emphasised by the reference to the EU’s commitment to considering the UK’s adequacy position “promptly” in a declaration accompanying the Brexit Deal. Although the ICO Response also sounds the warning that adequacy is not guaranteed and so organisations should be putting in place appropriate safeguards during this window.

Finally, as well as some specific commentary regarding data sharing in the context of law enforcement  and noting that the UK must also notify the EU-UK Partnership Council, as far as reasonably possible, of any new international transfers of personal data between public authorities for international transfers of personal data, the ICO Response also highlights that the process for any decisions in a range of areas (including UK adequacy decisions, approving international transfer mechanisms, or standard contractual clauses) must be put before the EU-UK Partnership Council. Given this requirement, it may be that material departure from the current UK data protection position is unlikely in the imminent future.

Miriam Everett
Miriam Everett
Partner, Head of Data Protection and Privacy, London
+44 20 7466 2378
Claire Wiseman
Claire Wiseman
Professional Support Lawyer, London
+44 20 7466 2267
Alasdair McMaster
Alasdair McMaster
Associate, London
+44 20 7466 2194
Asmita Singhvi
Asmita Singhvi
Trainee, London
+44 20 7466 3697


More than two years after the GDPR came into force, the European Data Protection Board (the “EDPB”) finally published its long-awaited draft guidelines on the concepts of controller and processor on 7 September 2020.

Prior to this date, UK organisations only had the relatively limited guidance set out on the ICO website and the old Article 29 Working Party guidance, which predated the implementation of the GDPR, to go on when attempting to apply these fundamental concepts to real-world scenarios.

The new draft guidelines, which are open for public consultation until 19 October 2020, are split into two parts:

  • Part I addresses the concepts of controller, joint controller, processor and third party/recipient and the scenarios in which these roles should be allocated to parties that are involved in the processing of personal data; and
  • Part II sets out details of the measures that need to be put in place when controller-processor and joint controller relationships arise, providing detailed commentary in relation to the contents of a valid data processing agreement entered into between a controller and processor (“DPA”) and joint controller arrangement.

While the contents of the new draft guidelines largely confirm our existing understanding of these concepts and measures, they do contain some helpful sections which serve to offer clarification in relation to a number of issues that have arisen since the implementation of the GDPR. Other sections, however, arguably serve to complicate certain issues further and it is fair to say that many practical questions that organisations and practitioners have, are likely to remain unanswered.

Taking the positive from the draft guidelines however, we set out below seven practical takeaways for organisations looking to navigate to challenges of these concepts.

1. An organisation does not need to have access to or receive personal data to be deemed a controller

If an organisation instructs another party to carry out processing of personal data, or otherwise has processing carried out on its behalf, the organisation can be deemed a controller without ever having access to or receiving personal data.

This guidance confirms that an organisation that provides detailed instructions to a service provider to process personal data on its behalf (e.g. to conduct market research), but only ever receives statistical output information from that service provider in return will not be excused from having to comply with its obligations under the GDPR as a controller simply because it never sees any personal data.

Although not explicitly addressed, it would seem unlikely when this situation arises that contractual provisions would be sufficient to rebut this assumption. For example, we consider it unlikely that a provision in the contract between an organisation and a processor service provider, expressly prohibiting the service provider from providing the personal data to the counterparty organisation, would be sufficient to avoid the organisation being deemed a controller.

2. A service provider can be a processor even if the main object of the service is not the processing of personal data (but not if it only processes personal data on an incidental basis)

If a service provider provides a service where the main object of that service is not the processing of personal data, but has routine or systematic access to personal data, it will be deemed to be a processor. Conversely, a service provider will not be deemed to be a processor if it only comes across very limited quantities of personal data on an incidental basis.

This guidance clarifies that a service provider such as an IT helpdesk service that routinely accesses personal data (e.g. by liaising directly with a customer’s employees or by screen sharing) will deemed to be a processor even if this is not the main object of its role but another service provider, which has, for example, been instructed to fix a specific software bug and will not have the same level of access to personal data (but might see some inadvertently), will not be deemed to be a processor.

3. A service provider that processes personal data for its own purposes will be deemed a controller in respect of those activities

If a service provider carries out processing of personal data for and on behalf of a customer in accordance with the customer’s instructions, it will be deemed a processor in respect of these processing activities. However, if the service provider also processes personal data for its own purposes in the course of carrying out these services (e.g. to conduct data analytics to assist with improving its services for the benefit of its entire customer base), it will be deemed to be a controller in relation to these processing activities, even if it remains a processor for the majority of the processing activities that it carries out for its customer.

This means that the service provider will need to find a way of complying with its obligations under the GDPR as a controller in respect of these processing activities, including the transparency requirements, and it should also make the extent of these activities clear to its customer in any services agreement.

This guidance also reinforces the idea that a service provider is unlikely to solely act as a processor in relation to all processing activities that it carries out in the context of providing services to a customer and is instead likely to act as a mixture of processor, controller and potentially joint controller in respect of the different processing activities that it carries out under these arrangements. This is something that we regularly see reflected in commercial agreements, although the defining lines between the roles that a party may have are often more difficult to discern.

4. Controllers and processors are equally responsible for putting a DPA in place which meets the requirements of Article 28 of the GDPR

Though the wording of Article 28 does not make it entirely clear as to whether it is the responsibility of: (i) the controller; or (ii) both the controller and processor, to put a DPA in place containing Article 28 compliant provisions, it has traditionally been the controller rather than the processor which has taken it upon itself to ensure that the provisions in the DPA are sufficiently robust and detailed so as to meet this requirement. This is possibly a hangover from the Directive and the Data Protection Act 1998.

The guidelines confirm, however, that fulfilling this obligation is the responsibility of both controller and processor and emphasise that processors are also open to receiving administrative fines under the GDPR, which means that processors need to be equally as proactive and engaged as controllers in relation to ensuring these requirements are met.

5. It is not sufficient for a DPA to merely restate the provisions of Article 28

In the absence of a standard set of regulator-sanctioned DPA clauses, controllers and processors have had to exercise their discretion when determining what to set out in a DPA in order to meet the requirements of Article 28 of the GDPR. Typically, parties tend to set out detailed provisions in a DPA if the processing activities to be undertaken are extensive and/or high-risk, whereas if the processing activities are to be minimal or routine, it is not uncommon to see “light touch” DPA wording which simply cross refers to or incorporates by reference certain elements of Article 28 without any additional detail (e.g. in relation to security, “the processor shall take all measures required under Article 32 of the GDPR”).

The guidelines now make clear that merely restating the requirements Article 28 GDPR is never sufficient or appropriate when drafting a DPA: details of the procedures that processor will follow to assist the controller with meeting the listed obligations under Article 28 of the GDPR (e.g. in relation to personal data breach reporting and adopting adequate technical and organisational measures to ensure the security of processing) will need to be set out, potentially in annexes to the DPA. For many organisations that have spent considerable time and resources repapering their commercial agreements to include Article 28 wording, this push for additional detail which may not already be included in many organisations’ DPAs is unlikely to be welcomed given the time often already required to negotiate the provisions of a DPA with counterparties.

6. A controller-processor relationship will only arise where a processor is a separate legal entity in relation to the controller

The guidelines clarify that a department within a company cannot generally be a processor to another department within the same entity and so it will not be necessary to put a DPA in place when this situation arises.

Although the guidelines do not explicitly address whether this principle also applies to a branch and a head office, it follows that it may also not be necessary to put a DPA in place if one were to process personal data for the other.

7. Attributing the roles of controller, processor and joint controller to parties involved in less straightforward processing relationships will remain a challenging exercise

The guidelines set out a number of new tests to help with applying the concepts of controller, processor and joint controller in practice.

For example, the guidelines state that a party will be deemed to be a controller if exercises a “determinative influence” in respect of the processing and if it determines the “essential means” of processing such as making fundamental decisions with regards to the type of data to be processed, the duration of the processing, the categories of recipients and the categories of data subjects. Conversely, if a party only determines the “non-essential means” of the processing, which might include considerations such as choice of hardware or software to be used, it will be deemed to be a processor.

The guidelines also provide that a joint controller relationship will arise where more than one party holds “decisive influence” in respect of the processing either by making a “common decision” or “converging decisions”, where the processing would not be possible without both parties’ participation and where both parties’ processing activities are inseparable or inextricably linked.

While these new tests are welcome insofar that they serve to flesh out the existing guidance available, they do not make the task of attributing the roles of controller, processor and joint controller to parties involved in complex processing arrangements any easier. In particular, the guidelines do not appear to add much clarity with respect to the concept of joint controllers and when such a relationship will arise. Market practice since implementation of the GDPR has seemed to shy away from parties considering themselves to be joint controllers and the draft guidelines do little to clarify whether such practice is sustainable or not. Arguably, these tests will only serve to complicate matters further by requiring additional layers of analysis to be carried out at the outset of every matter involving the processing of personal data. They also offer no guidance on what to do in circumstances where the contractual parties disagree on the analysis – a situation which is potentially only likely to become more common.

Duc Tran
Duc Tran
Senior Associate, Digital TMT, Sourcing and Data, London
+44 20 7466 2954
Julia Ostendorf
Julia Ostendorf
Trainee Solicitor, London
+44 20 7466 2154

German Regulator Publishes Schrems II ‘Checklist’

The Baden-Württemberg data protection authority (“LfDI”) has issued guidance to controllers and processors following the Schrems II judgement.  The guidance includes helpful, practical tips which entities can take with respect to their current and future international transfers. Whilst aimed primarily at organisations subject to the jurisdiction of the LfDI, the guidance may be helpful for organisations throughout Europe who are grappling with the impact of the Schrems II decision.

In summary, exporting entities which are supervised by the LfDI are expected to:

  1. review the instances in which they export personal data to third countries;
  2. contact their contractual partners or service providers to inform them of the consequences of the Schrems II case;
  3. check whether there is an adequacy decision for the relevant third country;
  4. research and consider the legal environment in the relevant third country;
  5. check if the SCCs which were approved by the European Commission can be used; and
  6. if so, verify that SCCs are in place and that there are additional transfer guarantees to supplement the SCCs.

In our view it is the underlined step 4 above that is likely to cause the most difficulties and this is an area where further guidance is required. An obligation on exporters to undertake due diligence on the complete legal environment in a third country (some of which may not be completely transparent) goes beyond what most organisations undertake at the moment and it is not clear how this will be achieved going forwards.

Amendments to the Standard Contractual Clauses

The LfDI also suggests that exporting controllers amend or supplement the controller-processor Standard Contractual Clauses in the following ways:

  1. Clause 4(f): The LfDI recommends that exporting entities inform affected persons that their data is being transferred to a third country which does not have an adequate level of protection not only when transmitting special categories of data, but when transferring any personal data in these circumstances. This notification should occur before or as soon as possible after the transfer;
  2. Clause 5(d)(i): The data importer should inform not only the data exporter, but also the data subject(s) of all legally binding requests from an enforcement authority to pass on the relevant personal data. If such contact is otherwise prohibited by law, the data importer should contact the supervisory authority and clarify the procedure as soon as possible;
  3. Clause 5(d): Data exporters should contractually oblige the data importer to refrain from disclosing personal data to third country authorities until the competent court orders or requires them to disclose personal data; and
  4. Clause 7(1): Exporting and importing entities should only include Clause 7(1)(b) (which allows the data importer to refer any dispute to the courts of the Member State in which the data exporter is established in the event that a data subject asserts rights as a third party beneficiary and/or claims for damages against the data importer based on the contractual clauses) and not include Clause 7(1)(a) which allows a data importer to refer the dispute to an “independent person”.

Although it is clear that ‘amendments’ to the Standard Contractual Clauses are not permitted, it has long been recognised that the clauses may be ‘supplemented’ with additional provisions provided that the effect of those provisions is not to amend the substantive content of the clauses themselves. As such, the suggested ‘amendments’ above (with the exception possibly of the rejection of clause 7(1)(a) of the Standard Contractual Clauses) should be lawfully possible. However, from first looks, it appears that there may be logistical challenges with some of the suggestions. For example, is it practical or even desirable for the data processor/data importer to have an obligation to notify data subjects of an access request received by a third country law enforcement agency? The processor is unlikely to have a direct relationship with the data subjects and may not even be able to contact them depending on the data being processed. There also remains the fundamental issue that nothing in a contract between exporter and importer is going to prevent law enforcement access.

That being said, whilst regulators across Europe published some initial thoughts and guidance immediately following the Schrems II judgement, this is the first piece of practical guidance that we’ve seen published by a supervisory authority. It will now be interesting to see whether other supervisory authorities and/or the EDPB follow a similar approach in their Schrems II guidance.

Miriam Everett
Miriam Everett
Partner, Head of Data Protection and Privacy, London
+44 20 7466 2378
Lauren Hudson
Lauren Hudson
Associate, Digital TMT, Sourcing and Data, London
+44 20 7466 2483

Happy GDPR-versary! Herbert Smith Freehills reflections on a year of GDPR regulation

The GDPR came into effect almost a year ago on the 25 May 2018. As the most significant reform of data protection law in Europe for over 20 years, the legislation raised expectations of a cultural shift in attitude to data privacy. A year on from the fanfare of implementation, this bulletin looks at key aspects of what we have seen and learnt since implementation, and what we can expect for the future.


Although we are still waiting for a ‘GDPR mega fine’, we have seen a EUR 50 million fine levied by the CNIL in France and there have also been some interesting enforcement decisions coming out of Europe in the first 12 months. There have been rumours of a fine matrix being developed by the regulators to help assess the level of fine to be imposed but, for now at least, it remains unclear how fines are calculated and when a ‘mega fine’ may be appropriate.

Interesting enforcement action to note so far includes:

UK: ICO finds HMRC to be in “significant” breach of data protection legislation but does not impose a fine

In May 2019, the ICO found HMRC in the UK to be in “significant” breach of the GDPR by processing special category biometric data (voice recognition data) without a lawful basis. However, instead of imposing a monetary penalty, the ICO issued an enforcement notice requiring HMRC to delete the relevant data by early June 2019. For more information on this enforcement action, see our blog post here.

Belgium: Court of Appeal asks CJEU for GDPR guidance on the ‘one stop shop’

In May 2019, the Belgian Court of Appeal asked the European Court of Justice for help interpreting the application of the GDPR’s ‘one stop shop’ and whether the designation by companies of a lead supervisory authority in Europe precludes any other European supervisory authority from taking enforcement action against that company. The results of the case will either open or close the doors for regulators across Europe to cast aside the one stop shop when looking to enforce GDPR compliance in their home jurisdiction. For more information on this enforcement action, see our blog post here.

Poland: When is it a disproportionate effort to provide a privacy notice?

In April 2019, the Personal Data Protection Office in Poland issued a €220,000 fine to a digital marketing company for breaching its obligations under Article 14 of the GDPR (i.e. to provide a privacy notice to individuals). The decision has some important practical implications for organisations, including that: (i) the collection of publicly-available information from the internet does not relieve you of your obligations under the GDPR; (ii) a significant cost (in this case €8 million) involved with providing privacy notices to individuals is not sufficient to be able to rely on the ‘disproportionate effort’ exemption under Article 14; and (iii) the GDPR is not prescriptive about how individuals must be provided with privacy information but the ‘passive’ posting of a notice on a website is unlikely to be sufficient where the individuals are unaware of the collection of their data. For more information on this enforcement action, see our blog post here.

Germany: German competition regulator takes enforcement action against Facebook for data issues

In a slight move away from privacy regulation, the German competition authority, the Federal Cartel Office, announced the results of its investigation into Facebook in February 2019. The decision highlights the ever increasing tension between competition and privacy regulation. The FCO found that Facebook had a dominant position in the German market for social networks, and abused this with its data collection policy. The FCO did not impose a fine on Facebook, but has instead required Facebook in the future to only use data from non-Facebook sources where it has users’ voluntary consent, the withholding of which cannot be used to deny access to Facebook. For more information on this enforcement action, please see our blog post here.

UK: First extra-territorial enforcement action commenced by the ICO

In October 2018, the UK data protection regulator, the ICO, issued its first enforcement notice under the GDPR. The notice was particularly noteworthy because it was issued against a company located in Canada, which does not have any presence within the EU. Despite the breaches being alleged, the enforcement notice was the first issued by the ICO relying on the extra-territorial provisions of the GDPR under Article 3. For more information on this enforcement action, please see our blog post here.


For many companies, a frustrating aspect of GDPR compliance over the last year has been the uncertainty. One year on from GDPR implementation and many questions remain unanswered. But we have now started to see signs that fundamental questions may eventually be answered and new regulatory guidance is starting to drip feed through the process.

Interesting regulatory guidance published over the last year includes:

A global regulation? EDPB guidelines on GDPR’s extra-territoriality provisions

The expansive nature of the GDPR’s extra-territoriality provisions has resulted in many organisations outside of Europe questioning whether or not they are subject to the GDPR regime. The market has eagerly awaited any guidance in respect of how Article 3 of the GDPR should be interpreted, and so the draft EDPB guidance published late last year was welcomed by the data community and the market as whole. However, whilst the draft guidance answered certain questions about the application of the GDPR, it also left a number of gaps and so we are still awaiting the final version of the guidance in the hope that some of those gaps will be closed. For more information on this guidance, see our blog post here.

EDPB guidance on when processing is “necessary for the performance of a contract”

In April 2019, the EDPB published guidance on the ability of online service providers to rely on the fact that processing is necessary for the performance of a contract in order to legitimise their processing of personal data. Although aimed specifically at online services, the guidance will nonetheless be useful for all controller organisations looking to rely on this processing condition. The guidance adopts a fairly narrow approach to interpretation with an objective assessment of “necessity” being required as opposed to relying on what is permitted under or required by the terms of a contract. For more information on this guidance, please see our blog post here.

EDPB opinion on the interplay between GDPR and ePrivacy

With companies having completed their GDPR compliance programmes, thoughts are now turning to the next major piece of European regulation in the data privacy sphere, the proposed ePrivacy Regulation, and how ePrivacy interacts with the GDPR, particularly with respect to cookie consent and email marketing. In March 2019, the EDPB published an opinion on the interplay between GDPR and ePrivacy which, whilst interesting, also confirmed that the whole ePrivacy regime is currently being renegotiated at a European level and the new ePrivacy Regulation could further change the position outlined in the opinion. As such, the opinion itself appears to be of minimal use for companies. For more information on this guidance, please see our blog post here.

What’s still to come?

One year on from GDPR implementation and we’ve seen limited enforcement action and even less regulatory guidance, meaning that companies are still having to try and find their way through compliance without direction. Much remains unknown and unanswered but what can we expect (or hope) from the next 12 months?


The Brexit issue rumbles on without much/any clarity or certainty. We know that an adequacy decision for the UK is extremely unlikely in the short term but whether or not an interim transition deal is achievable (including with respect to data protection and data transfers) remains unknown at this stage.

International transfers

Although the results of the EU-US Privacy Shield annual review in 2018 seem to confirm that the Privacy Shield remains intact for the short term, there remain significant uncertainties around the future of other compliant international data transfer mechanisms. In particular, the validity of the so-called Standard Contractual Clauses (“SCCs”) continues to be challenged through the courts which could result in the SCCs being struck down by the CJEU in the same way that the US Safe Harbor was in 2015.

Continuing on the theme of international transfers, we are also still awaiting the publication of updated versions of the SCCs. The current versions still refer to the 1995 Directive instead of the GDPR but cannot be amended for sense without the risk of invalidating them. There are rumours that the EU Commission has started to consider an update, including potentially updating the controller to processor SCCs to include Article 28 obligations. However, we have yet to see anything concrete coming out of Europe.

ePrivacy Regulation

As mentioned above, the ePrivacy Directive is currently being renegotiated and was originally intended to be ready in time for the GDPR implementation. However, the failure of the European institutions to agree on a number of issues has resulted in multiple delays and it now does not look likely that a draft will be agreed before the end of 2019/early 2020, meaning that the situation regarding cookie consent and email marketing is likely to remain uncertain for a considerable period of time.


As noted above, we are still awaiting a GDPR ‘mega fine’ but we also haven’t yet seen much in the way of significant volumes of enforcement action in order to be able to gain any meaningful insights into enforcement. There are rumours of significant enforcement actions in the pipeline from the ICO and the Irish Data Protection Commissioner, and we also know that there have been a number of material personal data breaches since implementation of the GDPR, but we will have to wait and see what happens in year two of GDPR.

Individual rights and data disputes

Although the GDPR provided for enhanced data subject rights for individuals, we have also started to see it being used innovatively as a mechanism by individuals to assert other rights, including human rights and the right to privacy. We have seen Prince Harry assert that a news company’s photograph of him at home was in breach of GDPR, and a claim against the Police for their use of facial recognition technology has recently started in Wales. Going forward, we are therefore likely to see GDPR used as a tool in disputes. For more information about this, please see our blog post here.

Data breach compensation

Perhaps the elephant in the room sits with data breach compensation. In April 2019 the Supreme Court granted Morissons permission to appeal against the Court of Appeal ruling that it was vicariously liable for its employee’s misuse of data, in the first successful UK class action for a data breach. Whilst the date for the Supreme Court’s hearing is still to be confirmed, the appeal is likely to take place during the course of 2020. For more information on the case, please see our blog post here.

New emerging technologies

The age-old issue of technological innovation outpacing the ability of legislation to keep up has reared its head only one year into the GDPR’s lifecycle. Organisations are having to apply the text of the GDPR to scenarios including blockchain technology, connected and autonomous vehicles and AI techniques that simply weren’t envisaged at the time of writing. In this rapidly evolving technological landscape, the need for regularly updated, up-to-the-minute official guidance in respect of these types of scenarios has never been greater but this will be an extremely challenging demand for the regulators to satisfy.

To keep up to date with the latest legal developments as they happen, please subscribe to our data blog here.


Miriam Everett
Miriam Everett
Partner, Head of Data Protection and Privacy, London
+44 20 7466 2378
Claire Wiseman
Claire Wiseman
Senior Associate and Professional Support Lawyer, Digital TMT & Data, London
+44 20 7466 2267
Lauren Hudson
Lauren Hudson
Associate, Digital TMT & Data, London
+44 20 7466 2483

EDPB guidance on when processing is “necessary for the performance of a contract”

  • The EDPB has published guidance on the ability of online service providers to rely on the fact that processing is necessary for the performance of a contract in order to legitimise their processing of personal data.
  • Although aimed specifically at online services, the guidance will nonetheless be useful for all controller organisations looking to rely on this processing condition.
  • The guidance adopts a fairly narrow approach to interpretation with an objective assessment of “necessity” being required as opposed to relying on what is permitted under or required by the terms of a contract.

Lawful bases for processing under the GDPR

All processing of personal data must satisfy one of the six lawful bases for processing under Article 6(1) of the GDPR. Article 6(1)(b) applies where the processing “is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract“.

What does the guidance say?

The guidance focusses the application of Article 6(1)(b) to online service providers and is intended to ensure that the “contractual necessity” basis is only relied upon in the context of online services where such reliance is appropriate.

In short, the guidance provides that whether processing is “necessary” for the purposes of Article 6(1)(b) will depend on whether one of the following conditions is met:

  • the processing must be objectively necessary for the performance of a contract with a data subject; or
  • the processing must be objectively necessary in order to take pre-contractual steps at the request of a data subject.

It is important to note that “necessity” in this context does not simply mean what is permitted under or required by the terms of a contract. In particular, the guidance indicates that where there are “realistic, less intrusive alternatives” than the processing which would achieve the same purpose, then such processing will not be deemed necessary for the purposes of Article 6(1)(b), regardless of the terms of the contract. Further, the guidance makes it clear that Article 6(1)(b) will not apply to processing which is “useful but not objectively necessary for performing the contract“, even where the processing is necessary for the data controller’s other business purposes.

Necessary for the performance of a contract

In order to rely on this limb of Article 6(1)(b), a controller will need to demonstrate the existence of a valid contract between it and the data subject, and be able to show that the processing in question is necessary in order for that particular contract to be performed.

As noted above, “necessary” in this context will require something more than a contractual condition: the processing must be in some way essential, or fundamental, such that objectively, the main purpose of the specific contract cannot be performed if the specific processing of the specific personal data does not occur.

For example, it is objectively necessary for an online service provider to process personal details such as credit card information and billing address in the context of taking payment, or for an online retailer to obtain a data subject’s home address for the purposes of delivery. However, where a data subject opts for “click and collect” delivery, it would not be objectively necessary for an online retailer to obtain the data subject’s home address (save, of course, where the home address happens to be the same as the billing address).

Other processing activities are likely to fall within a grey area. For example, the guidance notes that profiling for the purposes of tailoring or personalisation may be deemed objectively necessary in some circumstances, such as where such personalisation is an essential or expected feature of the service, but this will not always be the case.

Necessary for pre-contractual steps

To rely on this limb, the controller must be able to show that the contract in question could not be entered into without the pre-contractual processing having taken place. The controller must also be able to show that the pre-contractual steps are carried out at the request of a data subject – i.e. this limb will not apply to unsolicited marketing activities or processing carried out in the controller’s discretion.

For example, a data subject may enter their postcode on a particular company’s website to check whether a particular service is available in their area. Processing that postcode would be objectively necessary to take pre-contractual steps at the data subject’s request.

In contrast, processing for the purposes of targeted advertising would not be deemed objectively necessary for pre-contractual steps: it would be difficult to argue that no contract could be entered into in the absence of targeted advertising, or that the advertising was carried out at the data subject’s request. In particular, the guidance notes that this is the case even where such advertising funds the services, because such advertising would be separate from the objective of any contract between the controller and the data subject.

Impact for businesses

The guidance confirms a fairly narrow interpretation and objective assessment of necessity. It is helpful in the examples given but acknowledges that there will be many grey areas, for which the guidance provides no practical solution. In light of the narrow approach to interpretation, controllers may however wish to adopt a cautious approach when navigating such grey areas.


Miriam Everett
Miriam Everett
Partner, Head of Data Protection & Privacy, London
+44 20 7466 2378
Laura Adde
Laura Adde
Trainee, Digital TMT & Data, London
+44 20 7466 7491

Brexit, Data, Brexit

As we all continue to try to grapple with the implications of a no-deal Brexit, the last week or two has seen the publication of a few things of interest from a data protection perspective:

The EDPB’s view of data transfers in a no-deal Brexit scenario

On 12 February 2019, the European Data Protection Board (the “EDPB“) published a general information note on data transfers under the GDPR in the event of a no-deal Brexit (available here). In summary, the information note provides that organisations must comply with the GDPR when transferring personal data from the EU to the UK, which will become a “third country” for GDPR purposes (from 00.00 am CET on 30 March 2019). No new or additional safeguards are contemplated by the EDPB which effectively means that organisations must choose between:

  • Standard contractual clauses (which the EDPB acknowledges are “ready to use”);
  • Binding corporate rules;
  • Codes of conduct or certification mechanisms (although none are yet approved/available under the GDPR); or
  • Derogations such as individual explicit consent (although the EDPB emphasises that the derogations must be interpreted restrictively and mainly relate to processing activities that are occasional and non-repetitive).

For further information regarding the potential impact of a no-deal Brexit on data transfers, including an analysis of worked examples, please see our previous blog post available here.

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EDPB finally issues draft guidelines on GDPR extra-territoriality

On 23 November 2018, the European Data Protection Board (the “EDPB“) published its draft guidelines on Article 3 of the GDPR, being the provision that sets out the territorial scope of Europe’s data protection legislation.

The guidelines are only in draft form and subject to consultation but they do go some way to clarifying key questions regarding the application of the GDPR. That being said, they do not cover every possible permutation of Article 3, meaning that there remain gaps where organisations will need to exercise judgment without any comfort that their interpretation will align with that of the regulators. In particular, there would seem to still be question marks around the application of Article 3(2)(a) and what actually constitutes the offering of goods and services to individuals in the EU. Continue reading

Brexit Withdrawal Agreement: Impact for data protection

Following a UK Cabinet meeting on 14 November 2018, the UK Government has announced support for the text of a draft Withdrawal Agreement and an outline of the Political Declaration on the Future Relationship agreed with EU negotiators. The Withdrawal Agreement sets out the arrangements for the UK’s withdrawal from the EU on 29 March 2019 and includes a transition period through to 31 December 2020, during which EU law will continue to apply in and to the UK (the “Transition Period”). Data protection features in both the draft Withdrawal Agreement and the outline Political Declaration, reflecting the significance of the data protection rules to both the EU and the UK.

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