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What Is a UK Representative and Why Do You Need One?

Natacha has held a variety 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.

Businesses established outside of the UK must adhere to UK privacy laws. They must designate an official in the UK who will be their point-of-contact for data subjects and ICO.

What is an UK representative?

The UK Representative is an individual, a company or organisation that is formally mandated by a processor or controller of data to act on behalf of the controller or processor 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 requirements that were enacted in the context of GDPR's extraterritorial reach (see the UK case Rondon v LexisNexis Risk Solutions).

The EU GDPR Article 27 and its UK equivalent Section 3.2.2 of the Data Protection Act 2018, require the appointment of a representative. This requirement applies to all organizations that do not have a permanent establishment in the United Kingdom but offer goods or services or monitor the behavior of people who are located in the United Kingdom, or who process personal data. The Representative must be able to provide evidence of their identity and that they are able of representing the data controller or processor in relation to the UK GDPR's requirements.

The Representative must also be able to communicate with authorities if there is a breach. This is because the Representative must submit a notification to the supervisory authority that appointed them, regardless of whether the breach affects individuals across multiple jurisdictions.

It is important that the representative you choose has experience working with both European and UK authorities for data protection. It is also beneficial for them to have local language abilities since they are likely to receive calls from individuals and agencies in the countries they operate.

While the EDPB states that the Representative will be held liable in the event of non-compliance the UK court case of Rondon v LexisNexis UK Ltd (2019) EWHC 1427 has confirmed that a Representative cannot be sued by a person for the alleged failure to comply with the UK GDPR. The court ruled that the Representative was not in direct connection with the processing of data by the represented entity.

Who needs to appoint a UK Representative?

To be in compliance with the EU GDPR, UK Representative businesses that are not part of the EU that market their products or services to European citizens but do not have an office, branch or establishment within the EU must appoint an EU Representative. This is in addition the requirements of national data protection laws. A Representative's role is to be a local point-of-contact for individuals and supervisory bodies regarding GDPR concerns.

The UK has its own equivalent to the EU requirements, as laid out in Article 27 of the UK-GDPR. The threshold is the same as that of the EU requirement: any organisation that offers goods or services in the UK, or monitoring the behaviour of data subjects, must appoint an UK representative.

According to the UK-GDPR a representative must be approved in writing by the data subject or the [British Information Commissioner's officeto be able "to be contacted, further or alternately, on behalf the controller or processor". They cannot be personally held accountable for the GDPR's compliance. They must however cooperate with supervisory authorities in formal proceedings, and receive messages from those who exercise their rights. ).

Representatives should be located in the Member State of the European Union in which the individuals whose personal data are processed are residents. In the majority of cases, this will not be a straightforward decision to make and a careful business and legal analysis is required to determine the location(s) best suited to an organisation. For this reason we offer an individualized service that assists organizations in assessing their needs and selecting the best option for them.

It is also recommended that Representatives have experience in interacting with both supervisory authorities and dealing with requests from data subjects. Language skills in the local language can also be important, as the job may require handling inquiries from data subjects or supervisory authorities across Europe.

The identity of the representative should be disclosed to the individuals who are data subjects by incorporating their information in privacy policies and information provided to individuals before collecting their personal data (see Article 13 of the UK-GDPR). The UK Representative's contact details should be posted on your website, allowing easy access for supervisory authorities to get in touch with them.

When do you have to designate a UK Representative?

If your organisation is located outside the UK and offers products or services in the UK or monitors the conduct of individuals, you might be required to designate a UK Representative. The UK's applied EU GDPR regime is applicable to established entities outside the UK which are operating in the UK. It has the same reach as EU GDPR, with limited exceptions. You can take our no-cost self-assessment and find out if you have this obligation.

A representative is authorised by the entity that appointed them under a service contract to act on behalf of that entity with regard to a number of its obligations under UK and EU GDPR as applicable. In the UK this would typically involve facilitating communication between the appointing entity and Information Commissioner's Office or any data subjects that are affected in the UK. A Representative could be an individual or a company based in the UK. The body that appoints them must inform the subjects of data that the Representative will be processing their personal data and ensure that the identity of the person or company is readily accessible to supervisory authorities.

In accordance with Articles 13 & 14 of the UK GDPR the entity that is appointed as the representative is also required to provide the contact information of its representative to the ICO as well as to data subjects in the UK. It is imperative to make clear that a sales representative's role is distinct from the one of the role of a Data Protection Officer (DPO), which requires a degree of autonomy and independence that is that is not available to representatives.

If you need to appoint an UK representative It is advised to do so as quickly as you can. This is because the need for this comes immediately after Brexit (if there is either a 'hard' or "no deal' Brexit) or after an implementation period (if there is a soft or "with deal" Brexit). There is no grace period.

What are the requirements for the designation of a UK Representative?

According to UK laws on data protection A representative is a person, or a business who is "designated" in writing by an entity which doesn't have a physical presence in the UK however is subject to the law. The UK representative must be capable of representing the entity in compliance with its legal obligations and their contact details must be readily accessible to individuals who reside in the UK who have personal data being processed by the non-UK business.

The UK Representative must be an overseas senior employee of a media or business organization and have been hired and employed as an employee by the media or business organization outside of the UK. The visa applicant must plan to serve as the UK representative of the business or media organization full-time, and must not be engaged in other business activities in the UK.

In addition the visa applicant must demonstrate the necessary knowledge and skills to fulfill their duties as UK Representative which includes serving as the local point of contact for any queries from data subjects as well as the UK data protection authorities. The UK Representative must have the experience and knowledge of UK data protection laws to be able to respond to any inquiries and requests from data protection authorities and individuals exercising their rights.

As the Brexit process continues, it is likely that the UK laws regarding data protection will change over time. However, at present it is expected for non-UK companies that do business in the UK, and process personal data on individuals in the UK to nominate UK Representatives.

This is because the UK GDPR requires that entities that do not have a UK presence must appoint a representative under article 27 of the UK GDPR, which has been retained as a national law in the UK. If you're not sure whether you should designate the position of a UK data protection representative it is recommended consult an experienced legal advisor.