The Reason Why Become A Representative Is More Risky Than You Thought
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What Is a UK Representative and Why Do You Need One?
Natacha has held several senior positions within the Foreign Office, including as the Deputy Ambassador for China and Director of Economic Diplomacy and Emerging Powers. She also has worked on global trade policy and international issues.
Companies that are not based in the UK must comply with UK privacy laws. They must appoint a Representative in the UK to serve as their point of contact for data subjects, as well as the ICO.
What is a UK representative?
The UK Representative is a person, company or other entity that has been formally authorised by the controller or processor of data to act on behalf of the controller or processor in the GDPR's compliance issues in general. They will be the primary point of contact for enquiries from data subjects exercising their rights, or for requests from supervisory authorities and may also be subject to national regulations that were enacted in light of the GDPR's extraterritorial scope (see the UK case Rondon v LexisNexis Risk Solutions).
The appointment of Representatives is required under Article 27 of the EU GDPR, as well as the UK equivalent Section 3(2) of the Data Protection Act 2018. This requirement applies to all entities that do not have a permanent establishment in the United Kingdom but offer goods or services, or sales-representative control the conduct of people who are located in the United Kingdom or handle personal data. The representative must be able to authentic proof of their identity, and that they are able to represent the data processor or controller in relation to UK GDPR requirements.
As well as acting as a means for individuals to exercise their GDPR rights, the Representative must be capable of communicating with authorities in the event of an incident. The representative must notify the supervisory authority that appointed them, regardless of whether the breach affects data subjects across multiple jurisdictions.
It is recommended that your chosen Representative has experience of working with both European and UK-based authorities for data protection. It is also desirable that they are fluent in the local language since they will receive contacts from both individuals and data protection authorities in the countries in which they operate.
The EDPB states that the Representative is responsible for any non-compliance. However the UK case of Rondon v. LexisNexis UK Ltd. (2019) EWHC1427 affirmed that a representative can't be sued by anyone who believes that the controller of the data has failed to comply with GDPR in the UK. The court concluded that the Representative was not in direct connection to the data processing activities of the entity that it represented.
Who needs to appoint a UK Representative?
The EU GDPR requires that businesses from outside the EU with no office, branch or establishment in the EU, that target goods or services for European citizens must appoint a Representative. This is in addition to requirements of national laws on data protection. The role of a representative jobs is to serve as an individual point of contact for individuals and supervisory authorities in relation to GDPR compliance issues.
The UK has its own version to the EU requirement, which is set in Article 27 of the UK-GDPR. The threshold is the same as the EU requirement: any organization providing goods or services within the UK or monitoring the behaviour of individuals who are data subjects, must designate an UK Representative.
Under the UK-GDPR, a representative must be mandated in writing "to be additionally or alternatively addressed, on behalf of the controller or processor, by data subjects and the [British Information Commissioner's Office]". They cannot be held personally responsible for GDPR compliance. They must however cooperate with supervisory authorities in official proceedings, and receive notifications from individuals who exercise their rights. ).
Representatives should be based in the state of the European Union in which the individuals whose personal data are processed reside. In most cases this isn't an easy choice to make and a thorough analysis of legal and business aspects is required to assess the location(s) most suitable for an organisation. We provide a specialized service that assists businesses to determine their needs and select the most suitable representative choice.
It is also recommended that representatives have previous experience in dealing with both supervisory authority and dealing with inquiries from data subjects. Local language skills are also important since the role is likely to be involving dealing with requests from supervisory authorities or data subjects in multiple countries across Europe.
The identity of the Representative should be made clear to the data subjects by including their details in privacy policies and information provided to individuals before collecting their data (see Article 13 UK-GDPR). The UK Representative's contact details should also be made available on your website, giving easy access for supervisory authorities to get in touch with them.
When do you need to nominate a UK Representative?
If your organisation is located outside the UK and offers goods or services to the UK or monitors the behavior of individuals, you could be required to appoint a UK Representative. The UK's Applied EU GDPR regime applies for non-UK established companies that conduct business in the UK. It has the same extraterritorial reach as EU GDPR, with some exceptions. Take our free self-assessment to determine if you are required to comply with this obligation.
A representative is appointed by the appointing party under a contract of service to act for that party with respect to certain obligations under the UK GDPR and EU GDPR, as applicable. In the UK, the main purpose of this would be to facilitate communication between the appointing entity and the Information Commissioner's Office (ICO) or any other affected data subjects in the UK. A Representative could be an individual or a company based in the UK. The body that appointed them must inform data subjects that the representative will be processing their personal data and ensure that the identity of the individual or company is readily available to supervisory authorities.
The entity that appointed the representative must provide the contact details of its representative to the ICO and data subjects affected in the UK in accordance with Article 13 as well as 14 of the UK GDPR. It must make it clear that the role of a Representative is separate from and not compatible with the role of a Data Protection Officer ("DPO") that requires a certain degree of independence and autonomy that cannot be provided by a Representative.
If you are required to designate a UK representative It is advised to do it as soon as possible. This is because the requirement arises either immediately after Brexit (if it's a "hard" or "no deal" Brexit) or following an implementation period (if it is a "soft" or "with deal". There is no grace period.
What are the requirements for a UK Representative?
According to UK laws on data protection A representative is a person, or sales-representative - in the know, a business who is "designated" in writing by an entity which does not have a physical presence in the UK but is subject to the law. The UK representative must be able to represent an entity with respect to its obligations under law. Their contact details should also be readily available to UK residents whose personal information are processed by a non-UK company.
The individual who is the UK Representative must be a senior worker of the media or business organization and has been enlisted and subsequently made an employee outside of the UK by that media or business. The visa applicant must genuinely intend to be full-time employed as the UK representative for the business or media company, and are not allowed to engage in any other business activities in the UK.
The applicant also has to prove that they have the knowledge and sales-representative experience needed to fulfill the role of a UK representative, which entails being a local contact point for the data subjects and UK authorities responsible for data protection. This is to ensure that the UK Representative has sufficient knowledge of and expertise in the UK data protection laws, and can respond to any requests from individuals exercising their rights under the law and any other requests or enquiries received from data protection authorities.
As the Brexit process continues it is expected that the UK laws on data protection will change over time. In the present, however it is expected of non-UK companies that do business in the UK, and process personal information on individuals within the UK to choose UK representatives.
It is because article 27 of the UK's GDPR which was enacted as a UK national law, requires companies without having a presence in the UK to appoint an UK data protection representative. If you're unsure whether you're required to have a UK data protection rep it is advised to consult a qualified legal professional.
Natacha has held several senior positions within the Foreign Office, including as the Deputy Ambassador for China and Director of Economic Diplomacy and Emerging Powers. She also has worked on global trade policy and international issues.
Companies that are not based in the UK must comply with UK privacy laws. They must appoint a Representative in the UK to serve as their point of contact for data subjects, as well as the ICO.What is a UK representative?
The UK Representative is a person, company or other entity that has been formally authorised by the controller or processor of data to act on behalf of the controller or processor in the GDPR's compliance issues in general. They will be the primary point of contact for enquiries from data subjects exercising their rights, or for requests from supervisory authorities and may also be subject to national regulations that were enacted in light of the GDPR's extraterritorial scope (see the UK case Rondon v LexisNexis Risk Solutions).
The appointment of Representatives is required under Article 27 of the EU GDPR, as well as the UK equivalent Section 3(2) of the Data Protection Act 2018. This requirement applies to all entities that do not have a permanent establishment in the United Kingdom but offer goods or services, or sales-representative control the conduct of people who are located in the United Kingdom or handle personal data. The representative must be able to authentic proof of their identity, and that they are able to represent the data processor or controller in relation to UK GDPR requirements.
As well as acting as a means for individuals to exercise their GDPR rights, the Representative must be capable of communicating with authorities in the event of an incident. The representative must notify the supervisory authority that appointed them, regardless of whether the breach affects data subjects across multiple jurisdictions.
It is recommended that your chosen Representative has experience of working with both European and UK-based authorities for data protection. It is also desirable that they are fluent in the local language since they will receive contacts from both individuals and data protection authorities in the countries in which they operate.
The EDPB states that the Representative is responsible for any non-compliance. However the UK case of Rondon v. LexisNexis UK Ltd. (2019) EWHC1427 affirmed that a representative can't be sued by anyone who believes that the controller of the data has failed to comply with GDPR in the UK. The court concluded that the Representative was not in direct connection to the data processing activities of the entity that it represented.
Who needs to appoint a UK Representative?
The EU GDPR requires that businesses from outside the EU with no office, branch or establishment in the EU, that target goods or services for European citizens must appoint a Representative. This is in addition to requirements of national laws on data protection. The role of a representative jobs is to serve as an individual point of contact for individuals and supervisory authorities in relation to GDPR compliance issues.
The UK has its own version to the EU requirement, which is set in Article 27 of the UK-GDPR. The threshold is the same as the EU requirement: any organization providing goods or services within the UK or monitoring the behaviour of individuals who are data subjects, must designate an UK Representative.
Under the UK-GDPR, a representative must be mandated in writing "to be additionally or alternatively addressed, on behalf of the controller or processor, by data subjects and the [British Information Commissioner's Office]". They cannot be held personally responsible for GDPR compliance. They must however cooperate with supervisory authorities in official proceedings, and receive notifications from individuals who exercise their rights. ).
Representatives should be based in the state of the European Union in which the individuals whose personal data are processed reside. In most cases this isn't an easy choice to make and a thorough analysis of legal and business aspects is required to assess the location(s) most suitable for an organisation. We provide a specialized service that assists businesses to determine their needs and select the most suitable representative choice.
It is also recommended that representatives have previous experience in dealing with both supervisory authority and dealing with inquiries from data subjects. Local language skills are also important since the role is likely to be involving dealing with requests from supervisory authorities or data subjects in multiple countries across Europe.
The identity of the Representative should be made clear to the data subjects by including their details in privacy policies and information provided to individuals before collecting their data (see Article 13 UK-GDPR). The UK Representative's contact details should also be made available on your website, giving easy access for supervisory authorities to get in touch with them.
When do you need to nominate a UK Representative?
If your organisation is located outside the UK and offers goods or services to the UK or monitors the behavior of individuals, you could be required to appoint a UK Representative. The UK's Applied EU GDPR regime applies for non-UK established companies that conduct business in the UK. It has the same extraterritorial reach as EU GDPR, with some exceptions. Take our free self-assessment to determine if you are required to comply with this obligation.
A representative is appointed by the appointing party under a contract of service to act for that party with respect to certain obligations under the UK GDPR and EU GDPR, as applicable. In the UK, the main purpose of this would be to facilitate communication between the appointing entity and the Information Commissioner's Office (ICO) or any other affected data subjects in the UK. A Representative could be an individual or a company based in the UK. The body that appointed them must inform data subjects that the representative will be processing their personal data and ensure that the identity of the individual or company is readily available to supervisory authorities.
The entity that appointed the representative must provide the contact details of its representative to the ICO and data subjects affected in the UK in accordance with Article 13 as well as 14 of the UK GDPR. It must make it clear that the role of a Representative is separate from and not compatible with the role of a Data Protection Officer ("DPO") that requires a certain degree of independence and autonomy that cannot be provided by a Representative.
If you are required to designate a UK representative It is advised to do it as soon as possible. This is because the requirement arises either immediately after Brexit (if it's a "hard" or "no deal" Brexit) or following an implementation period (if it is a "soft" or "with deal". There is no grace period.
What are the requirements for a UK Representative?
According to UK laws on data protection A representative is a person, or sales-representative - in the know, a business who is "designated" in writing by an entity which does not have a physical presence in the UK but is subject to the law. The UK representative must be able to represent an entity with respect to its obligations under law. Their contact details should also be readily available to UK residents whose personal information are processed by a non-UK company.
The individual who is the UK Representative must be a senior worker of the media or business organization and has been enlisted and subsequently made an employee outside of the UK by that media or business. The visa applicant must genuinely intend to be full-time employed as the UK representative for the business or media company, and are not allowed to engage in any other business activities in the UK.
The applicant also has to prove that they have the knowledge and sales-representative experience needed to fulfill the role of a UK representative, which entails being a local contact point for the data subjects and UK authorities responsible for data protection. This is to ensure that the UK Representative has sufficient knowledge of and expertise in the UK data protection laws, and can respond to any requests from individuals exercising their rights under the law and any other requests or enquiries received from data protection authorities.
As the Brexit process continues it is expected that the UK laws on data protection will change over time. In the present, however it is expected of non-UK companies that do business in the UK, and process personal information on individuals within the UK to choose UK representatives.
It is because article 27 of the UK's GDPR which was enacted as a UK national law, requires companies without having a presence in the UK to appoint an UK data protection representative. If you're unsure whether you're required to have a UK data protection rep it is advised to consult a qualified legal professional.
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