What will a Brexit mean for EU digital laws?

Please read my updated post-referendum vote briefing here.

As the referendum on EU membership approaches on 23 June I find myself being asked many variations on one question:

If the UK leaves the EU what will it mean for digital laws?

The simple answer to that question is: it will mean sweet F.A.

Sometimes the question is phrased as

If the UK leaves the EU, does that mean we still have to comply with” (and fill in the blank – the cookie law, VATMOSS, and so forth.)

The simple answer to that question is: yes it does.

European digital laws pertain to the European citizens and residents who use sites, apps, platforms, and services within the EU. The fact that your business is outside the European Union – whether that’s America now or a post-brexit Britain in future – matters not a jot.

If you are doing business with Europe  – whether you are selling to them as customers, storing their data for service provision, or writing a terms and conditions statement – you need to be in compliance with European digital laws.

Leaving the EU will not change that one bit.

If you feel that being outside the EU should not make you beholden to comply with EU laws on behalf of your EU customers, you need to drop your EU customers.

Simple as.

Here is what leaving the EU will do in terms of EU digital laws.

First, a Brexit will roll back any concessions already made to UK traders on directives like VATMOSS. This horse was beaten to death in the Scottish independence referendum. You cannot retain your right to special exemptions within a system you have voluntarily left.

Second, a Brexit will remove the voice we already have. As Clare noted in the above link, “We would lose our seats on the Tax Committees, VAT Committees and ECOFIN EU Finance Minister meetings where solutions – and future legislation – are debated.” And that’s just the voice we have on one directive. Where EU digital laws are concerned, the UK will become an outside lobbyist – no different from, say, Google – whose feedback and input are secondary.

Third, a Brexit will lose us the friends we do have in Brussels who have indeed fought our corner. They’ll be on the dole.

Fourth, a Brexit means that digital legislation will be decided exclusively on a domestic level. At this point in history, that means people like Theresa May, the gong-collectors of HMRC, Lord Yougottabekiddingme, and these 90-year-old peers deciding how the digital profession will work in future. They will have free reign to make those decisions without the external safeguards that EU legislation has provided. (Why do you think Theresa May has been so adamantly against the European Convention on Human Rights? It contains the safeguards that prevent her from ratcheting up mass digital surveillance.) If you think the EU comes up with bad digital laws, wait until you see what the Tories have in mind.

Fifth, a Brexit removes having someone else to blame for our own faults as an industry. As I’ve been saying for years – the EU does solicit the UK’s feedback and input into digital laws. It’s not their fault that we don’t bother responding to consultations, or negotiate through an industry body, or take the initiative to learn about compliance obligations until weeks before our deadlines. It’s our fault alone. Are we really ready to have that debate, right now, without a safety net? Do you really wanna go there, honey?

Sixth, and related, a Brexit will render UK digital professionals like you and me the brats of the continent – the ones who took our balls and went home because we couldn’t bend the rules to our advantage. Our professional standing as an industry will be damaged. To be honest, we’re so good at making ourselves look bad that we really don’t need outside help in that regard.

Seventh, freedom of movement. That thing that lets you hop on a plane and speak at a conference without having to present tax paperwork at passport control. That thing that lets you turn WordCamp Europe into a three-week agency retreat at an airBNB. That thing that lets you take a six week project placement in Berlin on a whim. That thing that allows you to be a digital nomad if you so please. That’s likely to go. Did you think “freedom of movement” works only one way?

Let’s put this whole debate another way. Lyndon B. Johnson and J. Edgar Hoover. Two of history’s true bastards, working together in one place, at one time. Johnson was once asked why he kept Hoover in post despite all the headaches he caused. Johnson’s reply was:

“It’s probably better to have him inside the tent pissing out, than outside the tent pissing in.”

And so it goes for us. As digital law goes, we certainly have a lot that we’re right to want to piss about. But right now, at this moment, we are still inside the tent pissing out. If we go outside the tent to piss into it, the wind’s just going to blow all that piss right back on us. Those still inside the tent will have zipped the entrance closed.

For a less sweary-Glaswegian version of this argument see Darren’s post here.

About the author

Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.