Operate after Brexit

Data, intellectual property and legal contracts

Data, intellectual property and legal contracts

It is essential to remain legally compliant now that intellectual property rights, trademark law and data adequacy requirements are changing.

Data

The UK/EU trade deal includes provisions allowing the continued free flow of personal data from the EU, EEA and EFTA States to the UK for up to six months until data adequacy decisions are adopted. The UK has, on a transitional basis, agreed that personal data flows from the UK to the EU, EEA and EFTA can continue. The European Commission published its draft adequacy decisions in February 2021.

The draft adequacy decisions conclude that the UK has a level of protection for personal data that is essentially equivalent to the level of protection guaranteed under the GDPR and the EU’s Law Enforcement Directive. The impact on UK businesses and public authorities is that they will continue to be able to receive data from the EU under the adequacy bridge agreed in the 2020 trade and cooperation agreement

This means there is no current need for businesses to put in place Standard Contractual Clauses in order to facilitate EU-UK data transfer.

Read the ICO response to the EC's draft adequacy decision

Personal data is any information that can be used to identify a living person, including names, delivery details, IP addresses, or HR data such as payroll details. Most organisations use personal data in their daily operations. This could include, for example, a UK company that receives customer information from an EU company, such as names and addresses, to provide goods or services.

Businesses in all goods and services sectors may be reliant on personal data transfers from the EU/EEA/EFTA – all businesses are advised to check this and prepare accordingly.

Data protection and Brexit on the ICO website

From 1 January 2021

The EU agreed a draft decision on data adequacy in February 2021 and a final decision is expected by 30th June 2021. If adopted, this will allow the free flow of personal data from the EU, EEA and EFTA countries to continue uninterrupted.

In the event that a positive data adequacy decision is not formally adopted in relation to receiving personal data from the EU/EEA/EFTA, businesses are advised to take contingency actions. Measures such as standard contractual clauses (SCCs) or other alternative transfer mechanisms can be put in place by businesses to help reduce risk. The ICO also provides more detailed guidance on what actions might be necessary and an interactive tool that allows you to build SCCs.

What do you need to do?

Check the Information Commissioner’s Office (ICO) website. The ICO has published guidance on data protection and Brexit.

  • You should check with your service providers whether EU/EEA/EFTA personal data is currently flowing to your business in the UK and put in place arrangements with them (e.g. Standard Contractual Clauses) in the event that a data adequacy decision is not agreed
  • You should check whether you receive EU/EEA/EFTA personal data from consumers and businesses who are your customers and ensure this will be legally compliant if a data adequacy decision is not agreed
Further guidance

ICO statement on data protection

ICO guidance

DCMS Framework for the Free Flow of Non-Personal Data (Revocation) (EU Exit) Regulations 2021

Intellectual Property Office guidance on supplementary protection certificates from 1 January 2021

Intellectual property

The UK Government plans to continue recognition of existing rights in the UK by recreating protections in UK law. This applies both to registered and unregistered rights. They also cover wider mechanisms and arrangements relating to IP, such as cross-border copyright. 

Intellectual property and the transition period

Trademarks

As of 1 January 2021, existing international trade mark registrations designating the EU are no longer valid in the UK. They have been immediately and automatically replaced by UK rights. If you own an existing right, you do not need to do anything at this stage.

More information about changes to international trade mark registrations from 1 January 2021

What do you need to do? 

You may wish to seek legal advice on how some arrangements could affect your business model or intellectual property rights.

Ask our advisors for help

Contracts that were negotiated prior to Brexit may now need to be reviewed. Business contracts may no longer be subject to common EU law, and legal responsibilities around changes in import/export costs as well as relationships with agents and distribution may have to change. Seek professional legal advice.

Check if you need to change how you do accounting and reporting

You may breach reporting requirements in EEA countries if you do not make any changes you need to. 

GOV.UK updates on accounting for companies from 1 January 2021

Business mergers

Get legal advice if your business is merging with an EU company. 

If you do not follow the rules, you may be investigated by the Competition and Markets Authority (CMA) and the European Commission. 

Merger guidance from CMA

Other sources of advice and funding support

Data protection and Brexit on the ICO website

Innovation and IP – support and advice 

Advice on environmental regulation for businesses  

Grant funding for research and development 

You may breach reporting requirements in EEA countries if you do not make any changes you need to. 

Business auditing, accounting and reporting guidance on GOV.UK

GOV.UK updates on accounting for companies from 1 January 2021

Got a question about operating after Brexit?

Get in touch with our experts for the latest on the UK's exit from the EU, its impact on Scottish businesses, and how we can help you navigate the changes facing all companies.