In-house News Bulletin -September 2014

 

Radius_Law_LogoWelcome to our monthly In-house legal update brought to you by Radius Law and LexisNexis.

In just 15 minutes we’ll keep you abreast of the big commercial legal new stories - by video or downloadable bulletin , whatever suits you best.

What's more, not only do we scour the news and work with partners to select the most relevant news for in-housers and bring this together in one monthly bulletin - we also highlight the practical implications of the news to your business and what actions you need to consider taking as a result of the changing legislation, regulation or case highlighted.

So, grab a cup of tea, relax and allow us to keep you effortlessly updated with the information that your business can’t afford to miss.

 

 

Please note that links through to deeper analysis, guidance and cases are subject to your LexisNexis subscription. For access, please contact your Account Manager or request a free one week trial.
Data Protection

There have been a couple of stark warnings to employees tempted to breach data privacy rights.

  • In August it was reported that the Information Commissioner’s office, the ICO, fined a banker £880 for snooping on colleagues’ bank accounts. The employee who had access to view customer bank accounts in his money laundering investigating role allowed curiosity to get the better of him and looked at some colleagues’ bank accounts for salary information. He was found guilty of unlawfully obtaining or accessing personal data under the Data Protection Act 1998, s 55. For more information on complying with the data protection regime, see our Practice Note: Data Protection Act compliance—summary of key steps and documents required. See also our interactive flowchart: Data protection and information security—interactive flowchart.
  • In another case publicised by the ICO, a paralegal has been prosecuted for illegally taking sensitive personal data from his employer hoping to use the data in a new role.

These cases underscore the need for good Data Protection training, particularly highlighting that individuals can personally be prosecuted for Data Protection offences. For guidance see In-house lawyers: Risk management: confidentiality and In-house lawyers: Risk management: data protection.

Other Data Protection matters recently hitting the headlines include:

  • The ICO issued new guidance on Data Protection and the media – this follows an order by the Leveson Inquiry
  • The ICO served a £180,000 monetary penalty notice against the MOJ following the loss of a portable back-up drive containing sensitive material of almost 3000 prisoners. The drive was not password protected and nor was it encrypted. The Information Commissioner held that there was a serious contravention of the Seventh Data Protection Principle in that the MoJ had failed to take appropriate technical measures against unauthorised processing and accidental loss of personal data. The case was deemed even more serious as there had been a similar incident in 2011 but little remedial action had been implemented. For more information on the Seventh Data Protection Principle, see Practice Note: Data protection principles 5–8 — Principle 7: Measures against unauthorised or unlawful processing of personal data.
  • John Lewis has become the first company entangled in a court case where the direct marketing laws have been fully debated. It is understood the claimant complained about receiving emails stating that they were sent in breach of regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 SI 2003/2426. These Regulations require that consumers have opted-in before marketing emails are sent. There is an exception to the positive opt-in known as soft opt-in, essentially a pre-ticked box, to make it easier for organisations to send electronic marketing to existing customers. It is understood that John Lewis sought to rely on this exception but failed as the Claimant did not meet the narrow requirements, particularly that he had not previously purchased anything. This case highlights the need for businesses to review their personal data collection processes and ensure they are compliant with these Regulations. See Direct marketing tick-boxes—is your website compliant? for further analysis and guidance.
  • An ICO Audit report of 16 local authorities has recently been published reporting that no Authorities were able to demonstrate a high assurance of data protection compliance, 6 were rated as limited assurance and 1 as a very limited assurance.
Advertising and Marketing

The Advertising Standards Authority (the ASA) has announced its new strategy. Until now the ASA has been reactive. No complaints have meant no investigation but just one complaint can lead to a full investigation. The ASA has now promised a more targeted approach. In short those in a prioritised sector can expect more attention, whilst others may feel the heat is off them for a while. Undoubtedly the prioritised sectors will change dependent on public mood.

For more insight, see ASA strategy change—more efficient but less impartial? For more guidance on complying with the advertising codes generally, see Practice Notes: Broadcast advertising and Non-broadcast advertising.

Facebook is making significant changes to its terms which will take effect from 5 November this year and will have an impact on organisations using Facebook for advertising and sales promotions. The main change is that Facebook page owners will no longer be permitted to require Facebook users to ‘like’ a page to gain access to Facebook app content, e.g. to enter a promotion or competition or to download an e-book. This practice is known as like-gating and has been a common way for pages to increase their number of likes. For more information on advertising online, see Practice Note: Online advertising and What do I need to know about using social media for advertising? and for guidance on managing risk associated with social media see In-house lawyers: Risk management: social media.

Commercial

In the recent case of Chester Hall Precision Engineering v Service Centres Aero France, the Defendant was unable to rely on its terms and conditions that included, amongst other things, the choice of court. In this case the Claimant had stated that only the front page of the documents had been sent to them and the Defendant was unable to evidence otherwise. This case is an illustrative reminder of the need for good processes to ensure the terms and conditions are brought to the attention of the other party. It’s, of course, particularly easy, to neglect to include the terms and conditions on the reverse of a document when sending by fax.

For more information, see Choice of court agreements and Brussels I (Chester Hall Precision Engineering v Service Centres Aero France). For more information on standard terms, see Practice Notes: Pros and cons of standard terms and conditions, Incorporating standard terms and conditions and Key provisions in standard terms and conditions.

In another recent Tidal Energy Ltd v Bank of Scotland PLC it was reported that a business had been duped out of over £200,000 by being provided with the wrong CHAPS payment details and had no recourse against the bank. It appears that the fraudster had provided a sort and account number that did not correspond with the payee name, but in line with established banking practices the bank only checked the account and sort code number. We suspect that most businesses are unaware of the lack of banking checks for CHAPS payments and urge all businesses to review their own payment controls. For further analysis of the case, Patrick Bourke, a member of the Lexis®PSL Commercial team considers the case in Paying the wrong chap—is that a 2 or a 3?

Employment

InTruslove and Wood v Scottish Ambulance Service, a recent Scottish Employment Appeals Tribunal case held that, generally, time on call is working time if it is spent in a place that is determined by the employer and therefore the employee is entitled to have time on call included when calculating average weekly hours. In this case the claimants were employed as relief ambulance paramedics and had to stay within 3 miles of the ambulance station, had to keep an ambulance with them and had a three minute target mobilisation time.

For more information on the case, see On call time at specified non-workplace location may count as working time (News, 5 August 2014). If you need to update your knowledge of working time rules, see Practice Note: Eligibility for Working Time rights.

Continuing on a similar theme is the ZJR Lock v British Gas case reported a little earlier this year concerning whether an employee that has a variable element to his or her pay, typically for commission pay, can include an average of the commission earned for the purposes calculating holiday pay. The European Court of Justice in this case determined that, yes, a sum representing the commission should be paid during the holiday. Commission payments are, of course, regular practice in most sales functions and if this is relevant to your business it will make good sense to review your holiday payment policies now.  For details of the right to take time off for holidays, as opposed to the right to be paid for such holidays, see our Practice Note: Holiday pay

The draft Statutory Shared Parental Pay (General) Regulations 2014 have now been implemented and provide for a new entitlement for mothers, fathers, or partners of mothers who are employed earners and for adopters and their partners who are employed earners to receive a statutory payment from their employers called statutory shared parental. Eligible employees will be able to share up to 50 weeks of shared parental leave and up to 37 weeks of statutory parental pay. For further analysis on the implications for your business, read Shared parental leave—a new administrative headache for employers? where Kate Watkins of Anthony Collins says planning cover for shared parental leave is difficult for employers, and the Regulations are likely to be complex in practice.

Consumer

The law surrounding contracts formed at a consumer’s home was tested in a recent case. Here the seller refused to refund a deposit after the consumer cancelled the contract. Technical issues were aired in the case, particularly, whether the consumers cancellation right was defeated by the fact the seller had not issued a cancellation notice. The seller had also argued that the Cancellation Regulations did not apply where there had been repeat home visits. The Court of Appeal ruled against the Seller on both counts. What should businesses take from this? With limited exceptions if you are contacting with a consumer made other than during a visit to your premises then there is a 14 day right to cancel. If no notice is given then the cancellation right is extended to one year. For further analysis of the case, read Supreme Court gets tough on contracts in the home

Following concerns that consumers have been unable to get redress for misleading and aggressive practices Consumers will be able to seek redress by private court actions under the amended Consumer Protection Regulations. The new rights are effective from the 1st October. For details of the new 2014 regulations see Practice Note: Private right of redress for consumers.

In addition, the Consumer Rights Bill is passing through parliament and will introduce further changes (see Practice Note: Consumer Rights Bill). As a result of these changes (and the changes introduced in June, see Practice Notes: Distance selling after June 2014 and Doorstep selling after June 2014), we have introduced a new risk management guide on consumer protection which signposts further content on consumer protection law: In-house lawyers: risk management: Consumer protection review.

Bribery & Corruption

Four former execs of a British company Innospec have been sentenced for their roles in bribing state officials in Iraq. The case was brought under the Bribery Act and the sentences ranged from four years in prison to a 16 month suspended sentence with 300 hours unpaid work.

This case proves that the SFO is making headway with prosecutions under the Bribery Act and it also has a much publicised pipeline of cases.

Director of the SFO, David Green recently reported that it continues to focus on top level fraud and bribery and reported that he has a 10% increase in funding and additional Treasury blockbuster funding for exceptional cases.

Green is also calling for a change in the law and is seeking to persuade Parliament to impose a liability on companies that fail to prevent acts of financial crime by its associated persons. This is no surprise when most of the pipeline of SFO cases involve incidents of agents, facilitators and subsidiaries causing headaches for their parent companies.

The lesson here is to make sure your compliance plan extends to good due diligence checks on any business partners that represent you. Do you need to ensure that your organisation will not fall into the same trap? See our risk management guide for more information: In-house lawyers: Risk management: bribery and corruption.

Corporate

The financial reporting council has issued an updated version of the UK Corporate Governance Code and is applicable for accounting periods beginning on or after 1st October 2014. Whilst the code is only applicable for some listed businesses it is nevertheless advisable to review the code and apply it to your business where appropriate. It includes changes to remuneration with aim to encourage companies to align rewards with the sustained creation of value, risk management and internal control. For further information see our update: Updated UKCG Code focuses on value creation and going concern

Companies House has issued new guidance which emphasises that the failure to deliver documents on time is a criminal offence with potentially unlimited fines. Fines can be levied personally against any member of an LLP or director of a limited company. Whilst we suspect that criminal actions and severe fines will be reserved for the most serious cases, it is a warning to companies that regularly miss filing deadlines. For more information on company secretarial practice, see our company secretarial resources for in-house lawyers

Compliance

Following the Payday lender Wonga revelation in June that it had sent letters to customers in arrears from non-existent law firms it has become apparent that many other financial institutions have in-house brands that give the outward appearance of being an external law firm. The Solicitors Regulation Authority has issued a warning to solicitors following this activity coming to light highlighting the obligations on all solicitors to act with integrity and to behave in a way that maintains the trust the public places in the provision of legal services. For more in-depth analysis of this case read: Wonga to pay compensation following fake lawyer scandal.

Financial Services

The FCA has published a guidance consultation on social media and customer communication by regulated financial institutions. There is no particular surprise in the material which focuses on the requirements under Principle 7 to communicate with customers in a way that is clear, fair and not misleading. There are, of course, inevitable constraints with character limitation in some forms of social media but the consultation documents suggests some practical measures for still meeting the FCA requirements. For guidance on managing risk associated with social media see In-house lawyers: Risk management: social media.

And finally….

The monkey that took a picture of himself has caused much legal debate. It is well known that copyright, unless assigned, is owned by the creator. A photograph will therefore belong to the photographer, but where the photographer is a non-legal person i.e. a monkey then it is unclear who owns the copyright. This issue came to light after it was reported that a photographer was considering legal action against Wikimedia for refusing to take down a ‘selfie’ of a monkey. Wikimedia had responded saying that as the photograph was taken by a monkey, there is no copyright and is therefore in the public domain. The case is unresolved but does serve as a stark reminder about the risks of using material posted on the web.

Read further opinion on this debate. Gary Assim, partner at Shoesmiths, considers how the story was brought to light and whether the familiar legal framework of copyright should accommodate artistic works as a result of animal training and our developing understanding of animal intelligence in Is the monkey selfie debate more than a rumble in the jungle?

 

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