Monthly commercial law update: Top 5 developments in December 2015

December: a haze of Christmas parties, client events and panic shopping.

If you were too busy trying to perfect the one-handed canapé and drink grasp, here is a reminder of some of the key commercial developments from December 2015:

Consumer protection: launch of online dispute resolution platform postponed

postponedThe Department for Business, Innovation & Skills (BIS) revised the timescale for implementation of the online dispute resolution (ODR) platform.

Under Regulation (EU) 524/2013 (the Regulation) the European Commission is due to establish a European ODR platform. The ODR platform will be an interactive website, which can be accessed free of charge in all the official languages of the EU (art 5(2) of the Regulation).

It is specifically designed to help consumers who have bought goods or services online and subsequently have a problem with that online purchase. It allows consumers to submit their contractual dispute and conduct the alternative dispute resolution procedure online.

The Regulation requires traders engaged in online sales or services contracts to inform consumers about the existence of the ODR platform and the possibility of using that platform to resolve disputes. Traders must provide an electronic link to the ODR platform on their website and within an email (if the offer is made by email). The information must also be made available in the general terms and conditions applicable to online sales and services contracts (art 14).

The ODR platform was due to be operational by 9 January 2016. However, the Business Companion website states that the BIS has revised the timescale for implementation of the ODR platform and the 'go live' date of the platform has been delayed to 15 February 2016. Businesses will now not be required to carry a link to the ODR platform until it is launched on this new date of 15 February.

The website says that the BIS ‘fully understands that it will not be possible for businesses to meet [the 9 January date set out in the Regulations] as the ODR platform will not yet be launched. There will of course be no question of enforcement action before 15 February.'

Contract: Supreme Court issues new judgment on implied terms

The Supreme Court issued its judgment in Marks and Spencer v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72.

The case concerned a tenant's break clause in a lease and the interpretation of the lease. It was argued that a term should be implied into the lease if the tenant exercised its right to break the lease, it would be entitled to an apportionment of basic rent and other fees. The High Court agreed that such a term should be implied. The Court of Appeal disagreed in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2014] EWCA Civ 603, [2014] All ER (D) 147 (May), and allowed the landlord's appeal.

The Supreme Court considered the case law on implying terms and unanimously dismissed the further appeal. The lease was a full and carefully considered contract and included express obligations of the same nature as the proposed implied term, namely financial; liabilities in connection with the tenant's right to break and the proposed implied term would sit uneasily with some of those provisions.

Although the case arose in the context of a lease, it is of interest to lawyers dealing with general commercial contracts.

Media: Editors' Code revised following Leveson

penfileThe first revision of the Editors' Code of Practice since the independent lay members joined the Editors' Code of Practice Committee reflects the findings of the major review of the Code recommended by Lord Justice Leveson. The addition of lay members to the Committee was itself one of the Leveson recommendations, along with making the Chair and Chief Executive of the Independent Press Standards Organisation (IPSO) full members.

From 1 January 2016, changes to the Code include the following: specific reference is made, for the first time, to headlines not supported by the text of the article beneath; the reporting of suicide becomes the subject of a stand-alone clause, reflecting concerns about the publication of excessive detail about methods of suicide; gender identity is added to the list of categories covered by the discrimination clause, which protects individuals from prejudicial and pejorative reporting; the duty of editors to maintain procedures to resolve complaints swiftly, and to co-operate with IPSO, becomes enshrined in the Code's preamble and the Code's definition of the public interest; and the circumstances in which editors can invoke it has been updated and expanded in line with the Defamation Act 2013 (DA 2013), Data Protection Act 1998 (DPA 1998) and Crown Prosecution Service guidance.

Data protection: General Data Protection Regulation agreed

A political agreement on the long-awaited General Data Protection Regulation (GDPR) has been reached following significant negotiations.

The GDPR will be directly applicable across all 28 EU Member States and aims to modernise and unify data protection laws. Organisations will only have to deal with one single supervisory authority under the one-stop-shop principle.

Some of the key points of the new Regulation are that businesses that are found to be in breach of the GDPR may be liable to pay penalties of up to 4% of their total worldwide turnover; and businesses will no longer be required to notify their data processing activities to the various national data protection authorities. The current notification obligation will be replaced by a requirement to keep an inventory of data processing activities. The GDPR also provides for an obligation to appoint a data protection officer in certain circumstances and to notify data breaches to the relevant data protection authority within 72 hours.

The text is expected to be approved by the European Parliament in plenary in early 2016. It will then be directly applicable and will take effect in Member States in 2018. During the two-year transition phase, the European Commission will inform individuals about their rights and organisations about their obligations. Data protection authorities will work more closely together in the future, especially through the one-stop-shop mechanism to solve cross-border data protection cases.

Supply of goods and services: government publishes white paper on improving competition for consumers

shutterstock_150360542In July 2015, the government issued a fifteen-point plan which set out the steps needed to tackle the UK's productivity challenge and raise living standards.

The government has now published a follow-up document about improving competition. The document sets out various proposals, including several that will be of interest to commercial lawyers. In particular, the government will consult on whether consumer-like protections are needed for the smallest businesses in non-regulated sectors. It says that small businesses do not have the same rights as household consumers, and this can mean they do not get the best deals from the market.

In addition, the government has proposed various improvements for consumers in the telecoms sector such as making switching and unblocking mobile phones easier. More generally, the the consumer group Which? are to work with leading, consumer-facing businesses to review the way they present their terms and conditions, in particular online.

When the review has reported, the government will then consult on the introduction of civil fining powers for breaches of consumer protection laws, as part of a wider call for evidence on how to 'improve engagement with terms and conditions and ensure the terms that bind consumers are fair in practice'.

The CMA plans to undertake an analysis of price comparison websites during 2016 and the government will investigate what more can be done to ensure greater publication of complaint and customer satisfaction data by regulators and ombudsmen. The government has reviewed the functions of local Trading Standards services to ensure that enforcement supports competition and better regulation objectives and will publish a report of the review in due course.

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