(United Kingdom) How will Brexit impact upon the key rights and protections of the GDPR? In a new article, soon to be published in the journal Communications Law, Stergios Aidinlis argues that the GDPR's promises and protections will be eroded. SSRN reports as follows:
Will Brexit diminish digital rights protection in the UK or are domestic institutions better-placed to deliver such protection unencumbered by the oversight of EU institutions? [Stergios Aidinlis’s] article scrutinises the validity of conflicting arguments about the future of human rights protection in the UK by reference to a paradigmatically ‘European’ digital right, the right to be forgotten (RTBF).
Having considered the interplay between the multiple layers of UK law that an RTBF claim involves, Aidinlis argues that some legal implications of Brexit will have a graver impact on digital rights protection than others.
In respect of EU law no longer being supreme in the UK, the analysis offered here calls for more nuance in critical arguments about losing fundamental protections when it comes to the RTBF.
Brexit, however, will erode the protection of the RTBF in the longer term as a result of the loss of EU law’s direct effect. The scope of the ‘British RTBF’ will be gradually developed as ‘narrower’ compared to EU member states due to fundamental differences between the UK and European conceptions of privacy.
The central place of ‘reasonable expectations’ of the data subject within the UK privacy conception, Aidinlis suggests, sits at odds with social realities related to the RTBF and, thus, raises significant risks for the robust protection of the right in the future.
(Privacy press clipping sourced via SSRN)
Jurisdiction: United Kingdom
Key takeaways:
Stergios Aidinlis, a researcher at Oxford University, argues that Brexit will harm GDPR protections in the UK, and focuses his analysis especially on the right to be forgotten (Article 17 of the GDPR). He concludes this right is likely to be ‘eroded’ after Brexit.
Aidinlis suggests that UK courts have taken a narrower view of privacy rights in their case law, versus the EU Court of Justice. Once the GDPR is not ‘direct’ law in the UK, this will slowly have the effect of narrowing the right to be forgotten as it will be defined and interpreted in local law. After Brexit, too, the rulings of the EU courts will not be binding for the development of UK law.
The full citation for the article is: Aidinlis, Stergios, The Right to Be Forgotten as a Fundamental Right in the UK After Brexit (March 9, 2020). (2020) 25(2) Communications Law (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3554625