In-house legal and regulatory update—6th August 2019

We bring you updates across Brexit, Corporate and Commercial, Data protection, Information Law and Employment, focusing on the commercial aspects and look at the practical steps for you to consider.

This month we cover issues ranging including, among others, scrutiny of EU law following Brexit, updates to the Information Commissioner’s Office (ICO long-awaited revisions to its guidance on the use of cookies and similar technologies and the publish of the Department for Business, Energy and Industrial Strategy mid-year figures.

In this issue:

  • Brexit
  • In-house 
  • Risk & Compliance
  • Commercial
  • Corporate
  • Information Law & TMT
  • Employment

Brexit

No deal Brexit planning

Kieran Laird, partner and head of constitutional affairs in the Gowling WLG Brexit Unit, gives his analysis of the political and legal tools which may be used by Parliament to prevent a no-deal Brexit. See News Analysis: Can Parliament prevent a no-deal Brexit?

The Institute for Government (IfG) has published a report on no-deal Brexit preparations, outlining what the government needs to do in the lead-up, immediately after and in the months after a no-deal Brexit. The Confederation of British Industry (CBI) has also issued a report including 200 recommendations to the UK, EU and companies on how to best prepare for no deal. Joe Marshall, researcher at the IfG, comments on some of the key highlights of no-deal preparations, and calls into question the government’s legislative preparations so far. See LNB News 29/07/2019 103.

UK Finance has published its response to the CBI report on contingency planning for a no-deal Brexit. In the report, the CBI stated that, in relation to financial services, regulators are well prepared for the immediate impact of no deal. However, despite this activity, much of the business community will not be ready for no deal. For hundreds of thousands of small companies, diverting precious resource, both human and financial, to Brexit preparedness measures is out of reach. See: LNB News 29/07/2019 93.

For more information on keeping up to date on Brexit, including details of Brexit news updates, analysis and highlights, see Q&A: How do I sign up for Brexit alerts? 

In-house

Metrics - ACC Gobal Legal Department Benchmarking Report 2019 

Mark Yacano, global practice leader in managed legal services at global legal recruiting and advisory firm, Major, Lindsey & Africa, discusses the use of technology in legal departments. See News Analysis: In-house legal departments and technology.

Hans Albers, chief of staff and associate general counsel in international legal services at Juniper Networks, and president of ACC Europe, discusses how legal departments can approach staffing. See News Analysis: In-house legal departments and staffing.

Catherine J Moynihan, associate Vice President of legal management services at the ACC discusses legal department spending trends and what a legal team can do to optimise their spending practices. See News Analysis: In-house legal departments and spending.
 

Risk & Compliance

Risk & Compliance monthly highlights

This month’s edition of Risk and Compliance highlights includes: (1) crime prevention; (2) modern slavery & human trafficking; (3) anti-bribery & corruption; (4) AML & CTF; (5) information management & security; (6) privilege; (7) data protection; (8) a selection of other news and updates; (9LexisNexis webinars; and (10) all the latest new and updated content. See: Risk & Compliance monthly highlights—July 2019.

AML & CTF

The Financial Action Task Force (FATF) has published updated consolidated assessment ratings. This provides a high-level summary of FATF ratings of effectiveness and technical compliance against the 2012 FATF Recommendations. See: LNB News 31/07/2019 68.

An investigation by the Gambling Commission into systemic failures by the Ladbrokes Coral Group has led to a fine of £5.9m. The commission found that Ladbrokes Coral Group failed to implement safeguards to prevent gambling harm and money laundering. See: LNB News 31/07/2019 11.

The FATF has set out the procedures for the fourth round of mutual evaluations for its members based on the FATF Recommendations (2012), and the Methodology for assessing compliance with the FATF Recommendations and the effectiveness of AML and CTF systems (2013). See: LNB News 26/07/2019 29.

Anti Bribery and Corruption 

Quinton Newcomb, barrister and director at Fulcrum Chambers and member of the Lexis®PSL Corporate Crime consulting editorial board, considers whether the acquittal of the individuals implicated in the Sarlcad Ltd Deferred Prosecution Agreement (DPA) presents a worrying trend for the Serious Fraud Office (SFO). See News Analysis: SFO suffers further blow as Sarclad Ltd DPA revealed.

A former lawyer for Eurasia Natural Resources Corp (ENRC) had been given permission to tell the SFO that senior managers had allegedly paid bribes and were suspected of corruption, the agency said as it hit back at the mining company’s lawsuit challenging the investigation. See News Analysis: SFO defends talks with ENRC lawyer in £70M suit.

British prosecutors got a boost Tuesday from the Court of Appeal’s decision reinforcing the circumstances in which a company can be prosecuted for the actions of its senior executives. See News Analysis: Alstom ruling helps UK prosecutors tackling corporations.

Economic crime plan 2019-2022 

Alun Milford, partner at Kingsley Napley LLP, discusses whether the government’s Economic Crime Plan 2019-2022 fits into the country’s wider strategy of becoming the safest and most transparent place in the world to conduct financial business. See News Analysis: Economic Crime Plan 2019-2022—reinforcing the UK’s position in combatting economic crime?

Commercial

Contracts

Rachelle Sellek, partner at Acuity Law, considers whether it is time for English and Welsh law to go their separate ways. See News Analysis: Governing law—time to distinguish between English and Welsh law?

The High Court has ruled in Odyssey Aviation Ltd v GFG 737 Ltd [2019] EWHC 1927 (Comm) that a contract negotiated between two sophisticated commercial parties could still provide for an implied term as to requests for delivery of documents to comply with conditions precedent to completion. See News Analysis: Termination of commercial contracts, conditions precedent and implied terms (Odyssey Aviation Ltd v GFG 737 Limited).

Corporate

Equity capital markets

The FCA has issued final notices against Cathay International Holdings Limited, its CEO, Jin-Yi Lee, and its finance director, Eric Siu. The firm and individuals were found to have breached the Listing Principles and provisions of the Disclosure Guidance and Transparency Rules. See: LNB News 25/07/2019 73.

The Association for Financial Markets in Europe has published revised selling restrictions for equity transactions. The selling restrictions have been revised to reflect the application in full of the Prospectus Regulation (EU) 2017/1129. See: LNB News 26/07/2019 67.

Information Law & TMT

Data protection 

The US Federal Trade Commission (FTC) has imposed a $5bn penalty on Facebook for privacy violations. In addition to the financial penalty, which is almost 20 times higher than the second-highest penalty imposed on a company in a privacy enforcement action, Facebook has been ordered to submit new restrictions and modify their corporate structure so that the company can be held accountable for decisions made about users’ privacy. Rebecca Toman, partner at Carter-Ruck, says despite the fine ‘grabbing headlines, it is the non-financial aspects that should really have the corporate world sitting up and taking note’. See: LNB News 25/07/2019 74.

The Information Commissioner’s Office has published a blog post on how the use of artificial intelligence can require trade-offs between data protection principles and how organisations can assess and balance these. See: LNB News 25/07/2019 32.

The Court of Justice has ruled that operators of websites who embed the Facebook ‘Like’ button on their websites are joint controllers for the purposes of certain operations involving the data of visitors to those websites. See News Analysis: Court of Justice rules on data protection implications of website plugins.

Cybersecurity

Matthew Richardson, barrister at Henderson Chambers, examines the concept of ‘bulk hacking’ by intelligence services and some of the legal implications, in light of the latest judicial review challenge by Liberty International. See News Analysis: The implications of ‘bulk hacking’.

 Reputation management

Nick Grant and Edward Smith, members of Payne Hicks Beach’s privacy and media team, look at the implications of the new Pre-action Protocol for media and communications claims (the new PAP). See News Analysis: New pre-action protocol for media and communications claims.

Supply of services

The Department for Digital, Culture, Media & Sport has published the government’s response to the Digital Service Provider (EU Exit) call for views. The government used a small number of positive responses to inform its approach and the proposed requirement will be introduced through an amendment to the Networks and Information Systems Regulations 2018 (NIS Regulations), SI 2018/506, that will come into effect the twentieth day after exit day. Under the new requirement, non-UK based digital service providers that offer services in the UK must nominate a representative in the UK who will ensure compliance with NIS Regulations, SI 2018/506. See: LNB News 25/07/2019 30.

E-commerce

Google LLC (Google) crawls the web and caches images to populate search results, but often the links produced are not to that of the content provider but instead aggregator websites or link farms. A question arises as to whether UK websites can bring actions against Google seeking damages for breach of copyright by creating such links. Imran Benson, barrister at Hailsham Chambers, considers the case of Wheat v Google LLC  [2019] EWHC 1518 (Ch) (21 May 2019), in which the High Court gave some analysis of the options available to a website owner and permitted service of proceedings on Google. See News Analysis: Claims against Google and service out of the jurisdiction (Wheat v Google).

Employment

Equality

The Women and Equalities Committee has published a report criticising the Equality and Human Rights Commission’s enforcement of equality law and has called for a ‘fundamental shift’ in the way enforcement is approached, following cases of individuals having difficult enforcing their rights under the Equality Act 2010. See: LNB News 30/07/2019 50.

Financial services and banking: employment issues

The FCA has published policy statement 19/20, Optimising the Senior Managers & Certification Regime and feedback to CP19/4 (PS19/20) with final rules on the extension of the Senior Managers and Certification Regime (SM&CR) to FCA solo-regulated firms, including claims management companies. PS19/20 also confirms that the Head of Legal function will be excluded from the requirement to be approved as a Senior Manager, but that it is still subject to the Certification Regime. See: LNB News 26/07/2019 99.

 

Filed Under: News

Relevant Articles
Area of Interest