5 Become A Representative Instructions From The Pros
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What Is a UK Representative and Why Do You Need One?
Natacha has held a number of senior roles in the Foreign Office including Deputy Ambassador to China and Director for economic diplomacy and Emerging Powers. She has also worked in global trade policy and international issues.
Companies that are not based in the UK must adhere to 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 what is a UK representative?
The UK Representative is an individual, company or other entity that has been formally authorised by a data controller or processor to act on their behalf regarding all aspects of GDPR compliance. They will be the main contact point for inquiries from individuals exercising their rights, or for requests from supervisory authorities. They could also be subject to national regulations that have been enacted as a result of the GDPR's extraterritorial scope (see the UK case Rondon v LexisNexis Risk Solutions).
The appointment of a Representative is required under Article 27 of the EU GDPR, and the UK equivalent Section 3(2) of the Data Protection Act 2018. The requirement applies to any organization that does not have its own place of business within the United Kingdom and that offers services or goods or monitors the conduct of individuals located in the United Kingdom, or that handles personal data of these individuals. The representative must be able to provide proof of their identity and that they are competent in representing the data controller or processor in relation to the UK GDPR's requirements.
The representative must also be able to communicate with authorities in the event of a breach. This is because the Representative needs to submit a notification to the supervisory authority that appointed them regardless of whether the breach affects the data subject across different jurisdictions.
It is recommended that your chosen representative has worked with both European and UK Representative UK-based data protection authorities. It is also desirable for them to speak a local language since they are likely to receive calls from individuals and data protection agencies in the countries they work in.
While the EDPB states that the Representative should be held accountable in the event of non-compliance, the UK court case of Rondon v LexisNexis UK Ltd (2019) EWHC 1427 has established that a Representative cannot be sued by an individual for the data controller's inability to comply with the UK GDPR. The court ruled that the Representative did not have a direct connection to the processing of data by the represented entity.
Who should be appointed an UK Representative?
In order to comply with the EU GDPR, companies outside of the EU who are aiming their goods or services towards European citizens, but do NOT have become an avon representative office, branch or establishment within the EU must designate an EU Representative. This is in addition the requirements of national laws on data protection. A representative's job is to serve as a local point-of-contact for individuals and supervisory bodies in relation to GDPR issues.
The UK has its own version to the EU requirements, as laid in Article 27 of the UK-GDPR. The threshold is the same as that of the EU requirement: any organization providing goods or services within the UK or monitoring the conduct of the data subjects, has to appoint an UK representative.
Under the UK-GDPR, a Representative must be appointed in writing "to be, additionally or alternatively addressed, on behalf of the controller or processor, by data subjects and the [British Information Commissioner's Officethe [British Information Commissioner's Office]". They are not permitted to be held personally liable for compliance with the GDPR. However they must cooperate with supervisory authorities in formal proceedings and receive communications from data subjects exercising their rights (access request or right to be forgotten etc. ).
Representatives should be based in the EU member state where the individuals whose data is being processed are. In most cases this will not be a straightforward decision to make, and a thorough analysis of legal and business aspects is required to assess the location(s) best suited to an organisation. We provide a service that helps organisations assess their needs and choose the most appropriate representative location.
It is also recommended that avon representatives have experience interacting with both supervisory authority and handling data subject inquiries. The ability to communicate in a local language could be essential, as the role may involve dealing with inquiries by supervisory authority or data subjects across Europe.
The identity of the representative should be made known to the data subjects through the privacy policies and information provided prior to the collection of data (see article 13 in the UK-GDPR). The UK Representative's contact details should also be made available on your site, providing an easy way for supervisory authorities to connect with them.
When do you have to appoint a UK Representative?
If your organisation is based outside of the UK provides goods or services to individuals in the UK or monitors their behavior and conducts surveillance, you may have to designate a UK representative. The UK's Applied GDPR system applies to established companies outside the UK who are carrying out activities in the UK and has the same extraterritorial scope as the EU GDPR (with limited exceptions). Take our self-assessment for free and determine if you are required to comply with this obligation.
A avon representative is appointed by the party appointing under an agreement of service to act on behalf of the party in relation to specific obligations under UK GDPR and EU GDPR, as applicable. In the UK, this would primarily involve facilitating communication between the appointing entity and Information Commissioner's Office or any data subjects affected in the UK. A Representative could be an individual or a company with a UK base. The appointing body must inform data subjects that the Representative is processing their personal data and that the identity of the individual or business is readily accessible to supervisory authorities.
The appointing entity must also provide the contact details of its representative to the ICO and data subjects affected in the UK in conformity with Article 13 and 14 of the UK GDPR. It must make it clear that the role of a Representative is separate from and not compatible with that of a Data Protection Officer ("DPO"), which requires a level of independence and autonomy that cannot be provided by a representative.
If you are required to designate a UK representative, it is best to do it as soon as possible. This is due to the fact that this requirement arises either immediately after Brexit (if it is an "hard" or "no deal" Brexit) or following an implementation period (if it's an "soft" or a "with deal". There is no grace period.
What are the requirements to be a UK representative?
Under the UK laws on data protection (and specifically article 27 of the UK GDPR), a representative is an individual or a company that is "designated in writing" by an entity that has no presence in the UK but is subject to the rules of the law. The UK representative is required to be able represent an entity in relation to its obligations under law. The contact information of the representative should also be readily accessible to UK residents whose personal details are processed by a non-UK business.
The UK Representative must be an overseas senior employee of a media or business company and has been recruited and employed as an employee by the media or business organization outside the UK. The visa applicant must genuinely intend to be employed full-time as the UK Representative for the business or media organisation, and they are not allowed to engage in any other business activities in the UK.
Additionally, the visa applicant must prove that they have the necessary skills and experience to fulfill their duties as UK Representative that includes acting as local point of contact for any queries from data subjects as well as the UK authorities for data protection. The UK Representative must have the knowledge and expertise of UK laws regarding data protection to be able to respond to any requests and enquiries from data protection authorities as well as individuals exercising their rights.
As the Brexit process continues it is likely that the UK data protection laws will change as time passes. At present it is expected that companies from outside the UK that conduct business in the UK and collect personal information of individuals in the UK will need to appoint a UK representative.
This is because the UK GDPR stipulates that companies that do not have a UK presence must appoint a representative in accordance with article 27 of the UK GDPR, which has been retained as a national law in the UK. If you're not sure whether you need to appoint the position of a UK representative for data protection it is recommended consult an experienced legal adviser.
Natacha has held a number of senior roles in the Foreign Office including Deputy Ambassador to China and Director for economic diplomacy and Emerging Powers. She has also worked in global trade policy and international issues.
Companies that are not based in the UK must adhere to 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 what is a UK representative?
The UK Representative is an individual, company or other entity that has been formally authorised by a data controller or processor to act on their behalf regarding all aspects of GDPR compliance. They will be the main contact point for inquiries from individuals exercising their rights, or for requests from supervisory authorities. They could also be subject to national regulations that have been enacted as a result of the GDPR's extraterritorial scope (see the UK case Rondon v LexisNexis Risk Solutions).
The appointment of a Representative is required under Article 27 of the EU GDPR, and the UK equivalent Section 3(2) of the Data Protection Act 2018. The requirement applies to any organization that does not have its own place of business within the United Kingdom and that offers services or goods or monitors the conduct of individuals located in the United Kingdom, or that handles personal data of these individuals. The representative must be able to provide proof of their identity and that they are competent in representing the data controller or processor in relation to the UK GDPR's requirements.
The representative must also be able to communicate with authorities in the event of a breach. This is because the Representative needs to submit a notification to the supervisory authority that appointed them regardless of whether the breach affects the data subject across different jurisdictions.
It is recommended that your chosen representative has worked with both European and UK Representative UK-based data protection authorities. It is also desirable for them to speak a local language since they are likely to receive calls from individuals and data protection agencies in the countries they work in.
While the EDPB states that the Representative should be held accountable in the event of non-compliance, the UK court case of Rondon v LexisNexis UK Ltd (2019) EWHC 1427 has established that a Representative cannot be sued by an individual for the data controller's inability to comply with the UK GDPR. The court ruled that the Representative did not have a direct connection to the processing of data by the represented entity.
Who should be appointed an UK Representative?
In order to comply with the EU GDPR, companies outside of the EU who are aiming their goods or services towards European citizens, but do NOT have become an avon representative office, branch or establishment within the EU must designate an EU Representative. This is in addition the requirements of national laws on data protection. A representative's job is to serve as a local point-of-contact for individuals and supervisory bodies in relation to GDPR issues.
The UK has its own version to the EU requirements, as laid in Article 27 of the UK-GDPR. The threshold is the same as that of the EU requirement: any organization providing goods or services within the UK or monitoring the conduct of the data subjects, has to appoint an UK representative.
Under the UK-GDPR, a Representative must be appointed in writing "to be, additionally or alternatively addressed, on behalf of the controller or processor, by data subjects and the [British Information Commissioner's Officethe [British Information Commissioner's Office]". They are not permitted to be held personally liable for compliance with the GDPR. However they must cooperate with supervisory authorities in formal proceedings and receive communications from data subjects exercising their rights (access request or right to be forgotten etc. ).
Representatives should be based in the EU member state where the individuals whose data is being processed are. In most cases this will not be a straightforward decision to make, and a thorough analysis of legal and business aspects is required to assess the location(s) best suited to an organisation. We provide a service that helps organisations assess their needs and choose the most appropriate representative location.
It is also recommended that avon representatives have experience interacting with both supervisory authority and handling data subject inquiries. The ability to communicate in a local language could be essential, as the role may involve dealing with inquiries by supervisory authority or data subjects across Europe.
The identity of the representative should be made known to the data subjects through the privacy policies and information provided prior to the collection of data (see article 13 in the UK-GDPR). The UK Representative's contact details should also be made available on your site, providing an easy way for supervisory authorities to connect with them.
When do you have to appoint a UK Representative?
If your organisation is based outside of the UK provides goods or services to individuals in the UK or monitors their behavior and conducts surveillance, you may have to designate a UK representative. The UK's Applied GDPR system applies to established companies outside the UK who are carrying out activities in the UK and has the same extraterritorial scope as the EU GDPR (with limited exceptions). Take our self-assessment for free and determine if you are required to comply with this obligation.
A avon representative is appointed by the party appointing under an agreement of service to act on behalf of the party in relation to specific obligations under UK GDPR and EU GDPR, as applicable. In the UK, this would primarily involve facilitating communication between the appointing entity and Information Commissioner's Office or any data subjects affected in the UK. A Representative could be an individual or a company with a UK base. The appointing body must inform data subjects that the Representative is processing their personal data and that the identity of the individual or business is readily accessible to supervisory authorities.
The appointing entity must also provide the contact details of its representative to the ICO and data subjects affected in the UK in conformity with Article 13 and 14 of the UK GDPR. It must make it clear that the role of a Representative is separate from and not compatible with that of a Data Protection Officer ("DPO"), which requires a level of independence and autonomy that cannot be provided by a representative.
If you are required to designate a UK representative, it is best to do it as soon as possible. This is due to the fact that this requirement arises either immediately after Brexit (if it is an "hard" or "no deal" Brexit) or following an implementation period (if it's an "soft" or a "with deal". There is no grace period.
What are the requirements to be a UK representative?
Under the UK laws on data protection (and specifically article 27 of the UK GDPR), a representative is an individual or a company that is "designated in writing" by an entity that has no presence in the UK but is subject to the rules of the law. The UK representative is required to be able represent an entity in relation to its obligations under law. The contact information of the representative should also be readily accessible to UK residents whose personal details are processed by a non-UK business.
The UK Representative must be an overseas senior employee of a media or business company and has been recruited and employed as an employee by the media or business organization outside the UK. The visa applicant must genuinely intend to be employed full-time as the UK Representative for the business or media organisation, and they are not allowed to engage in any other business activities in the UK.
Additionally, the visa applicant must prove that they have the necessary skills and experience to fulfill their duties as UK Representative that includes acting as local point of contact for any queries from data subjects as well as the UK authorities for data protection. The UK Representative must have the knowledge and expertise of UK laws regarding data protection to be able to respond to any requests and enquiries from data protection authorities as well as individuals exercising their rights.
As the Brexit process continues it is likely that the UK data protection laws will change as time passes. At present it is expected that companies from outside the UK that conduct business in the UK and collect personal information of individuals in the UK will need to appoint a UK representative.
This is because the UK GDPR stipulates that companies that do not have a UK presence must appoint a representative in accordance with article 27 of the UK GDPR, which has been retained as a national law in the UK. If you're not sure whether you need to appoint the position of a UK representative for data protection it is recommended consult an experienced legal adviser.
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