Focus on the news: is it time to rewrite the GDPR in common law? | New

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News last week that the European Commission was going to approve the valuable ‘adequacy’ status of UK data protection laws has been a relief for much of the legal industry. In addition to allowing businesses to continue to share personal data across the EU when the current transitional agreement expires in June, the adequacy status also helps with law enforcement and other matters where cross-border cooperation is vital.

It was certainly a relief for the government. He had worked hard to get data protection measures ready to be aligned with the EU General Data Protection Regulation (GDPR) through the Data Protection Act 2018 and in the negotiations. leading up to the Christmas Eve Trade and Cooperation Agreement.

However, there are dissenting voices suggesting that by continuing to pick Europe out of the three major global data protection regimes (the others being North America and China), the UK is doing the wrong thing. choice. And they argue that in the information economy there is a choice. Unlike, for example, seashells, data does not degrade with distance, so there is no reason to combine regulations with those of geographic neighbors. Doesn’t it make sense to adopt regulations more suited to our national vision of the future?

One of those voices is Barnabas Reynolds, partner and global head of the financial services industry group of global company Shearman & Sterling. In a book * published this month by think tank Politeia, Reynolds calls on the UK to seize the post-Brexit opportunity to get rid of the GDPR. This would be part of a comprehensive program to free the City from the rules of EU law based on the civil code in favor of a common law system, better equipped to manage innovation and change. “The opportunity now arises for the UK to shed the legacy of codified European financial services law and return to its historic legacy of legislation and enforcement, for general economic benefit. “

The current framework based on European legislation is “prescriptive, inflexible, opaque and voluminous”, he says. His Civil Code assumptions, that basic principles must apply to entirely new situations, are “unduly sclerotic” and have killed new industries before they can take off. GDPR is a prime example and one of the reasons the EU has no equivalent to Google, he told the Gazette. Its stringent requirements create a “very top-down and controlled system – no common sense is involved.” Sensible lawyers are examining it, they all think it’s silly, but there’s nothing they can do about it. ‘

“GDPR is a very top-down and controlled system – no common sense is being implemented. Sane lawyers look at him, they all think it’s silly but there’s nothing they can do about it ‘

Barnabas Reynolds, Shearman & Sterling

While the UK is expected to accept the current match offer, “I don’t think we should make any commitments to keep the program going”. On the contrary, the government should consult on a common law-based approach, with less fixed regulation and more room for case law to adapt to new developments created by technologies such as artificial intelligence and blockchain.

One model could be the New California Diet, which Reynolds describes as being more about liability than prescription. It thus nourishes an ecosystem that allows innovation to flourish.

There are few signs the government is picking up on this idea. For starters, the trade and cooperation agreement specifically states that the UK and the EU “affirm their commitment to ensuring a high level of personal data protection” and a willingness “to work together to promote high international standards. “.

More generally, the government is quietly stifling hopes that Brexit will lead to a bonfire of EU-imposed regulations. The chairman of Boris Johnson’s task force on innovation, growth and regulatory reform, former Tory leader Iain Duncan Smith, said last week he had no plans to lead a “cutting and burning exercise”.

Meanwhile, the idea of ​​tearing up existing EU rules is widely unpopular with large companies – which have already incorporated them into their business models – and representative bodies such as the CBI. However, by definition, these groups represent existing businesses, which have learned to live within the current regulatory framework. Struggling startups or postgraduate students with bright ideas have less voice.

A rules bonfire can also be politically toxic: seemingly abandoning protection against the activities of the Amazons and Facebooks of the world would be a particularly tough sell.

Despite all the strengths of historic common law, it seems that the 40-year legacy of the Civil Code-based model’s absorption will be hard to shake.

* Restore British Law: Liberate the UK Global Financial Market, 172 pp, www.politeia.co.uk.


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