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Last updated June 2026
General | Data Protection Laws
National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
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Following the UK’s departure from the EU, the UK incorporated an amended version of the GDPR into UK law (“UK GDPR”).
The majority of the amendments following the departure of the UK were made under The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. This made the minimum changes necessary for the UK GDPR to continue to operate after Brexit, for example by removing references to participation in the European Data Protection Board, but did not otherwise affect the substantive obligations under that law.
The UK passed the Data Protection Act 2018 (“DPA 2018”) to help implement the GDPR. The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes. This was also amended following the UK’s departure from the EU.
The UK has subsequently passed the Data (Use and Access) Act 2025 (“DUA Act”). That contains a range of provisions, including further amending the UK GDPR and the DPA 2018. These changes are significant but do not fundamentally alter the structure of data protection legislation in the UK, which remains closely aligned to that in the EU.
Therefore, the summary below continues to refer to the position under the GDPR on the basis that, save to the extent indicated, the position is broadly the same under the UK GDPR.
The summary below also continues to refer to the European Data Protection Board’s guidance and to decisions of the CJEU. The UK Information Commissioner’s position is that guidance is no longer directly relevant to the UK and is not binding in the UK but, it might still provide helpful guidance on the UK GDPR. Similarly, the decisions of the CJEU after 31 December 2020 are no longer binding in the UK but can be highly persuasive in the UK courts.
Entry into force
The GDPR has applied since 25 May 2018.
The UK GDPR replaced the GDPR on 31 December 2020. The majority of the DPA 2018 came into force on 25 May 2018.
The amendments in the DUA Act have been introduced in stages with the majority of the data protection changes being made in February 2026. This summary describes the position once those data protection changes have been implemented.
Details of the competent national supervisory authority
The Information Commissioner ("ICO") acts as the supervisory authority in the UK.
The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
United Kingdom
Following the UK’s departure from the EU, the ICO no longer participates in the European Data Protection Board. Please note that pursuant to the DUA Act, the Information Commissioner is due to be replaced by the Information Commission.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
However, in the UK, regulations have been introduced to require controllers to pay charges to fund the ICO. Those charges range from £52 to £3,763 depending on the size and nature of the controller’s business. There are some limited exemptions to this obligation to pay charges.
Exemptions to notification
Not applicable.
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and applies to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
The UK GDPR applies a broadly similar territorial test, with references to the EU being replaced with references to the UK. These provisions were considered in detail by the Upper Tribunal in ICO v Clearview AI Incorporated [2025] UKUT 319.
Is there a concept of a controller and a processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The DPA 2018 contains a large number of additional national derogations, including for journalism, prevention of crime, collection of taxation, immigration control and legal proceedings.
The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes.
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies. This concept has been considered by the CJEU on multiple occasions. This includes deciding that information will not be personal data where the risk of identification appears in reality to be insignificant (OC v Commission, C 479/22 P) and that a “relative” approach should be taken to identification by considering the means reasonably available to the person holding the information (EDPS v SRB, C-413/23 P).
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.
The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019) and Guidelines on processing of personal data based on Article 6(1)(f) (1/2024).
The DUA Act creates a new condition for processing personal data that allows the processing of personal data for a recognised legitimate interest. These are set out in statute and include processing for purposes such as national security, emergencies and safeguarding vulnerable adults.
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The Article 29 Working Party has issued Guidelines on Consent (WP259).
The DUA Act relaxes the requirements for consent slightly where the processing is for the purposes of scientific research.
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
The DPA 2018 has reduced the age at which a child can provide a valid consent to online services to 13 years old. No age limit applies if the processing is for the purposes of preventative and counselling services.
The ICO has issued the Age Appropriate Design Code (also known as the Children’s Code) which contains a number of very stringent requirements when processing personal data about children in an online environment. The Code came into force in September 2021.
The DUA Act enhances data protection by design in relation to the provision of online services to children. Controllers must also consider the “children’s higher protection matters”, which involve considering how children can be best protected and supported, whether they merit specific protection and if they have different needs at different ages.
The UK has introduced other laws relevant to the protection of children on the internet, such as the Online Safety Act 2023.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
The UK has not implemented detailed rules regarding the processing of personal data about employees. However, it has made it a criminal offence to require an individual to make a subject access request to obtain their records in the context of recruitment. The UK has separate laws regulating employers’ access to the criminal records of their employees or applicants.
The ICO has issued specific guidance through its Employment Practices Code which sets out how data protection law applies to information about employees.
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. Decisions such as OT (C-184/20) and Lindenapotheke (C-21/23) indicate this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
The DPA 2018 provides further clarity about when this processing is permitted. In particular, it sets out specific processing conditions that will permit processing in a wide range of situations such as for the purposes of equal opportunities, insurance, research, political parties, the prevention of unlawful acts or dishonesty, and the provision of pensions. In many cases, a controller must prepare an “appropriate policy” if it relies on one of these conditions to process sensitive personal data. Following the UK’s departure from the EU, references to EU or Member State law were also replaced by references to domestic law.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
The DPA 2018 allows the processing of information about criminal offences in broadly similar situations to those in which special category data can be processed. This includes processing with the consent of the individual.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. However, the DPA 2018 does not impose any additional obligations to appoint a data protection officer (save in respect of processing under the implementation of the Law Enforcement Directive).
What are the duties of a data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
Is there a general accountability obligation?
The GDPR adds a general accountability obligation under which you must not only comply with these rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A data protection impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a data protection impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In the UK, the ICO has drawn up a list of “high risk processing”. It includes activities such as data matching and artificial intelligence.
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
In the UK, there is no obligation to provide this information in English, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with.
The DPA 2018 contains a wide range of exemptions to the obligation to provide privacy notices and to comply with other rights of data subjects. For example, exemptions apply where the personal data is privileged, compliance would prejudice the prevention or detection of crime or would interfere with certain corporate finance activities.
Rights to access information
Data subjects have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022). There have been several important CJEU decisions on the right of access. They indicate data subjects have a right to a faithful and intelligible reproduction of their personal data, including underlying documents where essential to exercise their rights effectively (FF, C-487/21) and that a request is only likely to be considered excessive if made with abusive intent (Rottler, C-526/24). In Österreichische Post (C‑154/21), the CJEU decided that details of specific recipients of the personal data must be disclosed unless this is impossible or manifestly unfounded or excessive.
The approach to subject access requests in the UK is likely to diverge following the DUA Act which states it is only necessary to conduct a “reasonable and proportionate” search in response to a subject access request.
The DPA 2018 also contains a wide range of exemptions to the obligation to respond to subject access requests for example where the information is protected by privilege or, in certain cases, would disclose personal data about other data subjects.
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
The DPA 2018 contains a number of exemptions to the obligation to provide data portability.
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are a range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
The DPA 2018 contains a number of exemptions to the right to erasure.
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affect the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
The DUA Act limits the general restriction on automated decision making so it only applies to the processing of special category data. However, controllers must still put certain minimum safeguards in place.
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Notice of breach laws apply to specific industry sectors under other regimes. For example, under EU DORA and under the national laws implementing the Privacy and Electronic Communications Directive and NIS II.
The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
Neither NIS II nor EU DORA apply to the UK. However, the obligations in the Network and Information Systems Directive continue to apply as they were implemented through a UK regulation that has not been repealed following the UK’s departure from the EU. In addition, controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Financial Conduct Authority of any breach).
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country (which includes US organisations participating in the EU-U.S. Data Privacy Framework).
A transfer can take place if it: (i) is made pursuant to a set of Standard Contractual Clauses; (ii) is made pursuant to binding corporate rules; (iii) is made to an importer who has signed up to an approved code or obtained an approved certification; or (iv) is otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18), any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The position is broadly the same as under the old Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
The UK framework for transborder dataflow continues to be broadly similar to that in the EU. In addition, the UK has grandfathered the existing adequacy findings for whitelisted countries. It has also matched the EU’s finding that Korea is an adequate jurisdiction, but not yet made a similar finding for Brazil or the European Patent Organisation. Transfer to US entities under the EU-US Data Privacy Framework are also only permitted if the entity is signed up to the UK Extension to that framework. Finally, the UK has recognised the EEA jurisdictions as providing adequate protection (and vice versa).
The UK has recognised the EU’s new Standard Contractual Clauses (so long as they are used in conjunction with a UK Addendum) and has adopted its own version of the Standard Contractual Clauses, known as the International Data Transfer Agreement.
The DUA Act sets out a new approach to transfer impact assessments, under which the question is whether the controller or processor reasonably and proportionately considers that the “data protection test” is met. That test involves an assessment of whether the transfer materially lowers the protection afforded to the personal data. This appears not to be equivalent to “essential equivalence” but rather to provide a more pragmatic and risk-based approach to transfers.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there is no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it is necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It is possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that covers transfers from anywhere in the EU.
In the UK, the ICO has approved binding corporate rules from a number of organisations, including Linklaters LLP. Where EU binding corporate rules have been obtained it is possible to get UK approval for them by using the UK BCR Addendum.
Fines
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
There are a number of CJEU judgments on administrative fines. For example, the CJEU has stated that fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
The DPA 2018 gives the ICO the ability to issue administrative fines by serving a Penalty Notice. The ceiling for fines has been converted into sterling and set at £17.5m (in place of €20m) and £8.7m (in place of €10m).
Imprisonment
The DPA 2018 makes it a criminal offence to: (i) unlawfully obtain personal data; (ii) alter records to prevent disclosure in response to a subject access request; (iii) intentionally or recklessly re-identify individuals from anonymised or pseudonymised data; or (iv) require individuals to make a subject access request for health or criminal record information in certain circumstances. Finally, there are also a number of offences for obstructing an investigation by the ICO.
Under the DPA 2018, directors, managers and similar officers are liable for offences committed by a company as a result of their consent, connivance or neglect.
However, none of these offences are punishable by imprisonment.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage.
The CJEU has issued a large number of judgments on compensation. They confirm that the mere infringement of the GDPR is not sufficient to give a right to compensation and there must be a causal link between the infringement and the damage to the individual. However, there is no minimum threshold of seriousness (Österreichische Post, C-300/21) and even negative feelings experienced by the data subject because of the misuse of their data may be sufficient to trigger a right to compensation (Quirin Privatbank, C-655/23).
The UK courts have previously suggested there should be a minimum level of seriousness for compensation claims (Lloyd v Google [2021] UKSC 50) so may diverge from the EU on this issue. This issue will be considered by the Supreme Court in Farley v Paymaster (1836).
The DUA Act also obliges controllers to offer a complaints mechanism to data subjects.
Other powers
Regulators have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
The DPA 2018 gives the ICO the ability to exercise these powers through Information Notices, Assessment Notices and Enforcement Notices. The ICO can also issue reprimands using powers under the UK GDPR.
Under the DUA Act, the ICO will get new powers to demand a “skilled person report” is undertaken and to order mandatory interviews.
Practice
Fines: The most significant fines under the GDPR and UK GDPR are:
General enforcement action: In relation to the GDPR, in calendar year 2025 the ICO issued: (a) eight reprimands; (b) one Enforcement Notice; and (c) five fines. There were also two criminal prosecutions.
In relation to PECR, in calendar year 2025 the ICO issued: (a) six fines; and (e) four Enforcement Notices.
The 2024/2025 Annual Report states the number of data protection complaints received by the ICO has increased. In 2024/2025, 42,315 data protection complaints were received (compared to 39,721 in 2023/2024). The ICO also received 49,494 complaints about electronic direct marketing in 2024/2025.
ePrivacy laws
The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “PECR”) implement the Privacy and Electronic Communications Directive. These regulations came into force on 11 December 2003.
The PECR was amended on 26 May 2011 to implement the amendments to the Privacy and Electronic Communications Directive.
There were very limited changes to these laws as a result of the UK leaving the EU. However, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 confirm that consent under the PECR must meet the consent standards under the GDPR.
Further changes to the PECR have been made under the DUA Act. Importantly, this includes aligning the sanctions for breach of the PECR with the UK GDPR. Previously, the maximum fine for breach of PECR was £500,000 and the ability of the ICO to issue a fine was subject to a number of threshold conditions.
Conditions for use of cookies
Consent is needed for the use of cookies unless the cookie is: (i) strictly necessary for the provision of a service to that subscriber or user; or (ii) for the sole purpose of a transmission of a communication.
The PECR expressly states that consent can be given through browser settings, though no such browser settings have been found to provide this consent as yet.
The DUA Act expands the situations in which a cookie will be deemed to be strictly necessary to include things like analytics cookies, website appearance cookies and cookies used in connection with emergency assistance. The UK Government is expected to make further proposals in relation to Adtech cookies in due course.
Regulatory guidance on the use of cookies
The ICO has issued guidance on cookies. That guidance made it clear that: (a) implied consent is not sufficient and so continuing to use a website is not sufficient to constitute consent; (b) consent must be obtained before cookies are set; (c) the class of “strictly necessary” cookies is limited and, for example, does not include persistent authentication cookies.
Conditions for direct marketing by e-mail to individual subscribers
It is only possible to send direct marketing e-mails to individual subscribers if they consent or the similar products and services exemption applies (see below).
Conditions for direct marketing by e-mail to corporate subscribers
The restrictions on e-mail marketing in the PECR do not apply to corporate subscribers (including individuals at corporates).
Exemptions and other issues
It is permitted to send e-mails for the purposes of direct marketing if the similar products and services exemption applies. For this exemption to apply the recipient’s details only need to have been collected in connection with the sale or negotiation for sale of products and services. There is no need for an actual contract to have been formed. The DUA Act extends the similar products and services exemption to apply to direct marketing from charities.
The PECR also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) if an opt-out address is not provided. The sender must also include the eCommerce information.
Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
It is not permitted to make direct marketing calls to individual subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
It is not permitted to make direct marketing calls to corporate subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.
Exemptions and other issues
Calls can be made to a subscriber on the Telephone Preference Service if they have consented to receiving such calls. The recipient should be told the name of the person responsible for the direct marketing call and, on request, an address or telephone number where he can be reached free of charge. When making a direct marketing call you must either not hide the calling number or present a number where you can be contacted.
Additional restrictions apply to marketing calls made by claims management companies or in relation to pension schemes.
Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.
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