Brexit Marketing 2021: UK marketers face conflicting jurisdictions for campaigns

Abi Roman

UK marketers face conflicting jurisdictions when running sales, price and prize promotions in 2021, warns Ardi Kolah, data privacy law and marketing expert.

The UK and the EU managed to agree a Brexit Trade Deal just before the transition period ran out at 11pm on Thursday 31 December 2020.

But that doesn’t mean things won’t change when it comes to pan-European sales, price, and prize promotion campaigns. From Friday 1 January 2021, UK brand owners and promoters will now be subject to parallel legal regimes.

Under the Withdrawal Agreement, EU data protection law (now to be called ‘EU GDPR’) has been fully converted into UK domestic law (to be called ‘UK GDPR’) with some minor technical amendments to ensure it’s operable in the UK. So although it is in effect still the full GDPR, the Europe specific elements, such as the role of the European Data Protection Board, the EU Council, the Court of Justice of the European Union, the One Stop Shop mechanism and other measures rooted in European laws and customs have been stripped out as the transition arrangements have now come to an end.

Don’t panic – marketers don’t really need to do anything different and in any event, must continue to comply with the Data Protection Act 2018 that’s part of ‘UK GDPR’.

It’s now important that any UK company that transfers the personal data of EU customers and prospects puts in place alternative transfer mechanisms to comply with European data protection rules. And for most brand owners and promoters, this will entail adopting Standard Contractual Clauses (SCCs) for cross-border data transfers. Even if the personal data of EU entrants and consumers was collected prior to 2021, it now needs to be processed based on the Withdrawal Agreement 2020.

The Brexit Trade Deal is short on details as to exactly how data protection legal frameworks will develop in the UK and the EU. However, what we do know is this:

  • The Brexit Trade deal reaffirms the sovereignty of UK.
  • The EU and the UK have the right to achieve legitimate policy objectives, including privacy and data protection. Such provisions are autonomous under international law. In the UK, there’s no legal obligation to follow EU laws and the European Court of Justice (ECJ) now has no role to play in UK law.
  • The EU and UK are committed to ensuring cross-border data flows to facilitate trade in the digital economy and therefore will not require localisation of data storage or processing.
  • The EU and UK recognise that individuals have a right to the protection of personal data and privacy and that high standards in this regard contribute to trust in the digital economy and to the development of trade.
  • Both the EU and the UK have the right to adopt or modify laws and policies in a manner consistent with each party’s international obligations.
  • There is an interim provision for the transmission of personal data from EU to the UK to continue, although the UK can’t exercise designated powers to change parts of “UK GDPR” and our laws will still need to be considered for ‘adequacy’ by the European Commission after which the interim provision will lapse.
  • The EU and UK will review these provisions within three years of this Agreement entering into force.

So what should marketers and promoters do now?

These Top Ten Tips have been developed in association with PromoVeritas, the UK’s leading promotional compliance agency:

  1. Don’t put your pan-European promotional plans on ‘ice’ as you’ll miss out on the huge sales opportunities that exist within the EU! Remember that promotions continue to be some of the most effective marketing campaigns for brand owners in driving incremental sales of products and services in the UK and across Europe.
  2. Brexit may have changed the legal framework for data privacy and data protection, but legal protections haven’t been relaxed. If anything, marketers need to work harder and should seek professional guidance and advice when not sure what to do.
  3. Given the electronic nature of many cross-border sales, price and prize promotions, it’s important marketers continue to comply with the requirements of the Privacy and Electronic Communications Regulations (PECR).
  4. The UK’s laws on data privacy and data protection are changing and marketers must keep on top of this. Make a point of regularly visiting the ICO, ASA, Ofcom, PSA and DMA websites throughout 2021 for the latest guidance and best practice in this area of marketing practice. Also check out the European Data Protection Board (EDPB) website for guidance as to compliance with EU laws that will continue to evolve in this area, such as the e-Privacy Regulation (E-PR).
  5. The UK is no longer part of the EU and is now treated under the EU GDPR as a ‘third country’. So there are certain legal requirements that must be considered before running a cross border promotional campaign, including ensuring the correct Terms & Conditions are in place, a data privacy notice is provided to entrants where there’s processing of their personal data and the use of Standard Contractual Clauses (SCCs) to safeguard the processing of EU citizens’ personal data if it is being processed by a UK based Data Controller.
  6. There may be a requirement for the brand owner or promoter to have a Representative based in the EU and the same applies for European-based brand owner to have a Representative based in the UK. Marketers should seek legal guidance and advice without delay.
  7. Marketers should take stock of any campaigns that commenced in 2020 and will run through 2021 to ensure that these comply with the requirements under the Withdrawal Agreement 2020.
  8. When running sales, price and prize promotions in the UK, marketers need to comply with the self-regulatory codes for non-broadcast and broadcast promotions that are overseen by the ASA and if your company is a member of the DMA, then the DMA Code is also applicable. Similar organisations and self regulatory bodies exist in all EU countries and their rules need to be followed by those operating in those countries. Ask PromoVeritas for more information.
  9. Care needs to be taken when considering prizes to offer. If things return to ‘normal’ sometime in 2021, holidays may be a popular choice of prize, allowing consumers to fulfil their dreams again. But travel always has some risk attached. If you are offering physical prizes, then you will need to consider the extra cost of freight, customs paperwork and duty if you are shipping from the UK to the EU. PromoVeritas now offer an EU based fulfilment service.
  10. Always consider the impact of currency fluctuations on your budgets, whether you are importing goods as prizes or planning  cross-border promotion campaigns. The value of the £ is likely to fluctuate more now that we are less connected with the EU and the Euro.

For detailed guidance for marketers involved in sales, price and promotion campaigns is contained in the 30 page ‘The Marketers Brexit Playbook’ available for FREE from PromoVeritas, email info@promoveritas.com and don’t forget to sign up to our free Brexit for Marketers Webinar where Ardi will be joined by PromoVeritas’ Head of Legal, Jorja Knight to explore the impact of Brexit on the marketing industry.

About the author

Ardi Kolah is an innovative global privacy advisor and founding editor of the Journal of Data Protection & Privacy. He’s been the Data Protection Officer for two NYSE-listed companies and he’s a doctorate researcher at Queen’s University Belfast in data privacy law and enforcement. He’s a Fellow of Information Privacy of the International Association of Privacy Professionals (IAPP).