> I found the law to be pretty clear and there are plenty of summarized versions out there. What some companies find confusing is that the law has made their core business model illegal and no consent form can save them.

What about Article 27? It's unclear, and you don't have to have a shady business model in order to have no idea how you are supposed to deal with it. All it takes is that your business is not established in the Union.

This is the article that requires companies who are not in the Union but are subject to GDPR due to Article 3(2) to appoint a representative in the Union. The representative serves as a contact point that regulators and persons can communicate with instead of the company on all GDPR matters concerning the company. The representative is also required to keep a bunch of metadata about the company's data processing, according t Article 30.

According to the recital for this article, "The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor".

What does that mean?

Some people claim it means that your representative in the Union will be liable for any fines you incur from EU regulators or any damages a plaintiff wins in a private lawsuit over GDPR if the regulator or plaintiff is not able to force you to pay up.

Others think it just means that if regulators or plaintiffs serve notice on the representative, that legally counts as if you were served, meaning that if you do not show up at the hearing or trial and lose by default, you cannot try to weasel out by claiming you had no notice of the hearing or trial. In other words, these people think that the representative is very similar to the "registered agent" that many jurisdictions require foreign businesses to have in order to do business in that jurisdiction.

Personally, I was leaning toward the latter, as the idea of making the representative liable seemed pretty absurd...but it has been pointed out that in earlier drafts of Article 27 and the recitals, it did in fact actually clearly do so. That language was taken out before the final draft, but was that change because they wanted to remove that aspect, or because they decided "subject to enforcement proceedings" already implied it and they were just tightening the language?

This is important because if representatives are actually liable for fines and damages, it is going to be a lot more expensive to hire people to be representatives than it will be if all they have to do is be a contact point and a repository of metadata.

For small businesses outside the Union this could be a major expense if they must have a representative, perhaps a big enough expense that it will be worthwhile to just stop doing business in the EU.

So we must ask, "Who needs a representative?". The answer, it turns out, involves still more vagueness.

Basically, you are excused from needing a representative if you meet three conditions. Two of them most small businesses easily meet as long as they are not doing high volumes of certain particularly sensitive data, and their processing does not result in a risk to "the rights and freedoms of natural persons" (more vagueness!).

The third condition is that your processing "is occasional". What is "occasional"? No one seems to know.