The regulatory landscape for data protection has grown increasingly complex in recent years, particularly following the UK’s departure from the European Union. For businesses operating internationally but based outside Europe, this has created a dual compliance challenge that many are still struggling to understand.
One of the most frequently overlooked requirements is the need to appoint a GDPR representative—a requirement that has become more nuanced in the post-Brexit environment.
This article explores why your business might need a GDPR representative, how Brexit has complicated this requirement, and what steps you should take to ensure compliance whilst operating in both UK and EU markets.
Understanding the Fundamentals: What is a GDPR Representative?
Before delving into the post-Brexit complexities, it’s essential to understand what a GDPR representative is and why this role exists.
A GDPR representative is an individual or organisation established in the EU or UK who is designated by a non-EU/UK data controller or processor to act on their behalf regarding GDPR compliance obligations.
The representative serves as a local point of contact for supervisory authorities and data subjects, ensuring that businesses without a physical presence in these jurisdictions remain accountable for their data processing activities.
This requirement is explicitly outlined in Article 27 of the GDPR, which mandates that controllers or processors not established in the EU must designate a representative if they process personal data of EU residents in connection with:
- Offering goods or services to individuals in the EU (regardless of whether payment is required), or
- Monitoring the behaviour of individuals within the EU
The Post-Brexit Complication: Two Regulatory Regimes
Prior to Brexit, businesses outside the EU only needed to appoint a single representative to cover their GDPR obligations across all EU member states, including the UK. However, since the UK’s departure from the EU, the situation has changed significantly.
The UK has implemented its own version of the GDPR—the UK GDPR—which largely mirrors the EU GDPR but operates as a separate legal framework. This creates a dual compliance requirement for businesses targeting both EU and UK markets.
The Two-Representative Reality
For businesses based outside both the EU and UK (such as those in the United States, Australia, Canada, or New Zealand), this means potentially needing to appoint:
- An EU representative established in an EU member state where your data subjects are located
- A UK representative established in the UK
This dual requirement often catches businesses off-guard. As John McVeigh, GDPR expert and founder of AssureMore, explains: “Post-Brexit, the requirement for separate UK and EU representatives often catches businesses off-guard.
A US e-commerce company selling to both UK and EU customers, for instance, would need two distinct representatives to ensure full compliance.”
Determining Whether Your Business Needs a GDPR Representative
Many businesses operate under the misunderstanding that GDPR doesn’t apply to them if they don’t have a physical presence in Europe. However, the regulation’s territorial scope extends well beyond European borders.
Your Business Likely Needs a GDPR Representative If:For EU GDPR:
- You have no establishment (office, branch, subsidiary) in any EU member state
- You offer goods or services to individuals located in the EU
- You monitor the behaviour of individuals in the EU (including website tracking, profiling, etc.)
For UK GDPR:
- You have no establishment in the UK
- You offer goods or services to individuals located in the UK
- You monitor the behaviour of individuals in the UK
Practical Examples:
To illustrate when a GDPR representative is required, consider these scenarios:
Scenario 1: An Australian e-commerce company sells products to customers in both the UK and EU through its English-language website, which allows customers to pay in pounds or euros.
- Requirement: Representatives needed in both the UK and EU
Scenario 2: A Canadian software company offers a SaaS product globally but doesn’t specifically target EU or UK customers, though it has users in both regions.
- Requirement: Representatives likely needed in both jurisdictions if data processing is regular and systematic
Scenario 3: A US-based news website that doesn’t offer subscriptions but uses cookies to track user behaviour, including readers from the UK and EU.
- Requirement: Representatives needed in both the UK and EU if tracking is regular and systematic
Limited Exemptions
It’s worth noting that there are limited exemptions to the representative requirement. According to Article 27(2) of both the EU and UK GDPR, a representative is not required if:
- Processing is occasional
- Processing does not include special categories of data on a large scale
- Processing is unlikely to result in risks to the rights and freedoms of natural persons
However, these exemptions are interpreted narrowly. For most businesses regularly engaging with European customers, the representative requirement will apply.
The Strategic Value of GDPR Representatives Beyond Compliance
While meeting legal obligations is the primary reason for appointing GDPR representatives, doing so offers several strategic advantages that extend beyond mere regulatory compliance.
1. Market Intelligence and Competitive Advantage
GDPR representatives, being on the ground in their respective jurisdictions, can provide valuable insights into:
- Regulatory developments and enforcement trends
- Local interpretations and applications of data protection requirements
- Cultural nuances that might affect how data protection is perceived
As John McVeigh notes: “A skilled GDPR representative doesn’t just help with compliance; they’re your eyes and ears in the European market. They can provide invaluable insights into regulatory shifts and market sentiment, allowing businesses to make informed strategic decisions.”
2. Enhanced Customer Trust and Brand Reputation
Having local GDPR representatives demonstrates:
- Commitment to data protection compliance
- Respect for customers’ privacy rights
- Willingness to be accessible and accountable
In today’s privacy-conscious market, this commitment can significantly enhance customer trust and brand reputation.
3. Streamlined Regulatory Communication
In the event of a data breach or regulatory inquiry, having representatives ensures:
- Swift communication with authorities
- Navigation of local regulatory procedures
- Coordinated responses across jurisdictions
4. Risk Mitigation and Proactive Compliance
Experienced representatives can help:
- Identify potential compliance risks before they become issues
- Implement preventative measures
- Keep you informed about evolving compliance requirements
Responsibilities of GDPR Representatives
Understanding what GDPR representatives do is essential for businesses evaluating whether they need to make such appointments and what they should expect from this relationship.
Core Responsibilities Include:
1. Acting as a Point of Contact
Representatives serve as the primary contact point for:
- Data protection authorities in their respective jurisdictions
- Data subjects exercising their rights
- Other stakeholders with questions about data processing activities
2. Maintaining Records of Processing Activities
Representatives must maintain copies of records detailing:
- Categories of data processed
- Purposes of processing
- Categories of data subjects
- Recipients of personal data
- Transfers to third countries
- Retention periods
- Security measures
3. Facilitating Communication
Representatives facilitate communication between:
- The business and supervisory authorities
- The business and data subjects
- The business and other relevant stakeholders
4. Cooperating with Supervisory Authorities
When requested, representatives must cooperate with authorities on actions related to ensuring compliance.
The Consequences of Non-Compliance
Failing to appoint a GDPR representative when required can lead to significant consequences that extend beyond financial penalties.
1. Financial Penalties
Under both the EU and UK GDPR, non-compliance with the representative requirement can result in administrative fines of up to €20 million (or £17.5 million in the UK) or 4% of global annual turnover, whichever is higher.
2. Operational Disruptions
Non-compliance may lead to:
- Orders to suspend data processing activities
- Restrictions on international data transfers
- Limitations on market access
3. Reputational Damage
In today’s privacy-conscious market, non-compliance can result in:
- Loss of customer trust
- Negative publicity
- Competitive disadvantage
As McVeigh warns: “Non-compliant businesses may face restricted access to lucrative European markets, significantly damaging their competitiveness and growth potential. In today’s interconnected economy, such restrictions can have far-reaching implications for a company’s global strategy.”
Choosing the Right GDPR Representative Solution
For businesses needing to appoint GDPR representatives in both the UK and EU, several approaches are possible:
1. Separate Representatives
Appointing different representatives for the UK and EU can provide specialised expertise in each jurisdiction but may complicate coordination and increase costs.
2. One-Stop Solution
Some service providers offer comprehensive GDPR representation covering both the UK and EU through a coordinated service. This approach can streamline communication and ensure consistency across jurisdictions.
3. Retainer-Based Service
A retainer-based GDPR representative service provides ongoing, reliable support for businesses operating in European markets. McVeigh explains: “A retainer-based GDPR representative doesn’t just react to issues; they proactively identify and mitigate risks before they become problems. This foresight is invaluable for businesses navigating the complexities of European data protection laws.”
Key Factors to Consider When Selecting a Representative:Expertise and Experience
Look for representatives with:
- Thorough understanding of both UK and EU data protection frameworks
- Experience working with businesses in your industry
- Demonstrated knowledge of cross-border compliance issues
Communication Capabilities
Ensure your representatives can:
- Communicate effectively in relevant languages
- Respond promptly to authorities and data subjects
- Keep you informed about important developments
Service Scope
Consider whether you need:
- Basic representation services only
- Additional compliance support and consulting
- Integrated services covering both jurisdictions
Practical Steps for Implementation
If you’ve determined that your business needs to appoint GDPR representatives, these practical steps will help you implement this requirement effectively:
1. Conduct a Thorough Assessment
Begin by:
- Documenting your data processing activities related to EU and UK data subjects
- Confirming whether any exemptions might apply
- Identifying which member states contain your data subjects
2. Select Appropriate Representatives
Choose representatives based on:
- Geographic coverage needed
- Industry expertise
- Service model that fits your needs
- Clear communication channels
3. Formalise the Appointment
Document the appointment through:
- Written mandates outlining responsibilities
- Clear contractual terms
- Defined communication protocols
4. Update Privacy Documentation
Ensure your privacy notices and relevant documents:
- Identify your representatives
- Include their contact details
- Explain their role in relation to data subjects’ rights
5. Maintain Ongoing Compliance
Remember that compliance is continuous:
- Regularly review and update your data processing records
- Keep representatives informed about changes in your activities
- Stay alert to regulatory developments in both jurisdictions
Conclusion
The post-Brexit landscape has created a more complex compliance environment for businesses targeting both UK and EU markets.
Understanding and fulfilling the requirement to appoint appropriate GDPR representatives is not just about avoiding penalties—it’s about ensuring sustainable access to these valuable markets and demonstrating a commitment to respecting the data protection rights of European customers.
As data protection regulations continue to evolve globally, having proper representation in key markets provides a foundation for sustainable international growth and compliance.
Rather than viewing the GDPR representative requirement as merely another regulatory burden, forward-thinking businesses recognise it as an opportunity to enhance their reputation, mitigate risks, and gain a competitive edge in privacy-conscious European markets.
By taking a proactive approach to appointing and working with GDPR representatives, businesses can navigate the complex landscape of post-Brexit data protection with confidence and clarity, turning compliance into a catalyst for trust and growth.
