In-house legal and regulatory update—July 2019

In-house legal and regulatory update—July 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
  • Risk & Compliance
  • Commercial
  • Corporate
  • Information Law & TMT
  • Employment

Brexit

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Plans to secure freight capacity after Brexit

The government has issued a brief update on preparations for a no-deal Brexit and has announced plans to launch further public procurement exercises to secure freight capacity required if the UK leaves the EU with no deal. See: LNB News 27/06/2019 21.

Scrutiny of EU law after Brexit

The European Scrutiny Committee has opened an inquiry examining post-Brexit parliamentary scrutiny of EU laws and policies. The inquiry will investigate the effectual relationship between EU laws and policies and the UK after Brexit, with or without a deal, and what changes may be needed to the current system of scrutiny. See: LNB News 02/07/2019 65.

Risk & Compliance

Risk & Compliance monthly highlights

This month’s edition of Risk and Compliance highlights includes: (1) anti-bribery & corruption; (2) AML & CTF; (3) sanctions & export controls; (4) information management & security; (5) GDPR & data protection; (6) a selection of other news and updates; and (7) all the latest new and updated content. See: Risk & Compliance monthly highlights—June 2019.

Crime prevention

The planned European Public Prosecutor’s Office faces structural and jurisdictional issues that may complicate EU investigations and prosecutions, including those in the UK, say Peter Binning and Alex Cummins of Corker Binning. See News Analysis: New EU Public Prosecutor’s Office will likely struggle.

HM Treasury and the Office of Financial Sanctions Implementation have published guidance on the framework for persons, entities and bodies subject to financial sanctions for their involvement with cyber-attacks threatening the EU or its Member States. See: LNB News 01/07/2019 67.

The National Audit Office has released a report on tackling serious and organised crime. The authors of the report argue that ‘there are still significant and avoidable shortcomings’ to the government’s approach. See: LNB News 28/06/2019 104.

AML & CTF

The Financial Action Task Force (FATF) has published its report to the G20 leaders’ summit which provides an overview of the FATF’s recent and future anti-money laundering (AML) and counter terrorist financing (CTF) work. See: LNB News 28/06/2019 50.

The FATF has also published three new pieces of guidance on its risk-based approach to AML. The guidance sets out the approach for legal professionals, accounting professionals, and trust and company service providers. See: LNB News 27/06/2019 84.

Data protection

The Information Commissioner’s Office (ICO) has published long-awaited revisions to its guidance on the use of cookies and similar technologies under the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the GDPR. More than a year since the GDPR became effective, some organisations have been struggling to reconcile the established requirements of PECR 2003 with aspects of the GDPR, particularly the stricter standard for valid consent. The guidance aims to provide ‘more clarity and certainty’ for providers of online services. See: LNB News 04/07/2019 19.

The ICO has announced that a former company director found guilty of illegally obtaining personal data and selling it to solicitors chasing personal injury claims was fined £1,050 and ordered to pay £250 in costs for breaches of data protection. See: LNB News 28/06/2019 36.

The ICO has published a new access to information strategy, ‘Openness by Design’. The strategy aims to encourage public authorities to comply with information legislation regulated by the ICO in the first instance, reducing the number of complaints submitted to the ICO. See: LNB News 27/06/2019 32.

Commercial

Advertising

The House of Commons Library has published a report on the current advertising regulatory system in the UK, with a special emphasis on advertising to children. The report confirms that the advertising codes contain strict rules to protect children from potentially misleading, harmful or offensive material, including the prohibition on depicting children in hazardous situations and on undermining parental authority or placing unfair pressure on children to buy products. See: LNB News 28/06/2019 16.

Contracts

In a highly unusual factual context, the Court of Appeal has had a chance to reconsider the concept of factual consideration in the light of recent Supreme Court decisions which have tended to favour commercial certainty. Lauren John Godfrey, barrister at Hardwicke Chambers, considers the case of Simantob v Shavleyan [2019] EWCA Civ 1105. See News Analysis: A reconsideration of factual consideration in a world of commercial certainty (Simantob v Shavleyan).

Graeme Kirk, barrister at Lamb Chambers, considers the case of Classic Maritime Inc v Limbungan Makmur SDN BHD [2019] EWCA Civ 1102, where the Court of Appeal upheld a decision that a charterer was liable for its failure to make five shipments of iron ore pellets, in circumstances where a dam had burst and prevented the supply of the goods. See News Analysis: Contractual exception clauses, force majeure, causation and damages (Classic Maritime v Limbungan Makmur).

Consumer protection

Madlenka Ltd has been fined £250,000 by the Phone-paid Services Authority for misleading its customers into calling 118 numbers. Calls to the company made out of hours or on weekends directed consumers to call the expensive Directory Enquiries line. See: LNB News 27/06/2019 39.

Corporate

Corporate governance

The Department for Business, Energy and Industrial Strategy has published mid-year figures released by the Hampton-Alexander Review, which show that the FTSE 250 could meet the target of at least 33% women in board and senior leadership positions by 2020, provided it maintains current progress. The FTSE 100 is also on track to meet that target, having seen an increase in female board members from 12.5% in 2011 to 32.1% in 2019. Overall, 29.1% of all FTSE 350 board positions are currently held by women. See: LNB News 01/07/2019 82.

Companies & climate change

With the annual Carbon Disclosure Project report finding that the majority of European companies have no CO2 reduction targets, efforts to compel corporate responsibility for climate change initiatives seem to have faltered. However, there are many reasons to be optimistic—Tallat Hussain, environmental counsel at White & Case LLP, outlines the benefits of a tailored approach to targets, and emphasises that innovation is the best way to remain a leader in the field. See News Analysis: Companies vs climate change—time to look forward.

The government has confirmed that part of its Green Finance Strategy is an expectation that listed companies disclose how climate change impacts their work. The government expects that all listed companies and large asset owners will disclose in line with the Task Force on Climate-related Financial Disclosures recommendations by 2022. See: LNB News 02/07/2019 55.

Information Law & TMT

Internet connected devices

As cybersecurity becomes increasingly prevalent with each new internet connected device released, David Halliday, partner, Helen Brown, partner and consumer protection specialist, and Kate Corby, partner and product liability specialist, all at Baker McKenzie LLP, discuss UK government plans to introduce new legislation that protects against cyber-attacks as well as the legal implications of the proposed new laws. See News Analysis: Plans for new laws for internet connected devices—will they protect devices effectively?

Cybersecurity & secure innovation

The World Economic Forum’s Centre for Cybersecurity has published a report on incentivising responsible and secure innovation: principles and guidance for investors. It looks at new ways of empowering oversight and sets out a new assessment framework to ensure that technology companies prioritise security in their development and production. See: LNB News 03/07/2019 43.

Telecommunications

New rules have been enacted banning notice-period charges and enabling mobile users to leave their current network with a single text. Under the new Ofcom rules, which were enacted on 1 July 2019, mobile network providers are also obliged to publish and promote clear guidance on how to leave their mobile network. Those who want to leave their network will be able to request a switching code via text, and the switch will be active within one working day of the new provider receiving the code. Users will also be able to request a switching code online. See: LNB News 01/07/2019 20.

Employment

Equality

Whether an employer can be liable for direct discrimination, under section 13 of the Equality Act 2010, for treating someone less favourably because they perceive that person to be disabled, even though that person is not in fact disabled, was considered by the Court of Appeal in Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061. See News Analysis: Direct discrimination wide enough to include treatment due to perceived disability (Chief Constable of Norfolk v Coffey).

Whether there was religious discrimination where the claimant was treated as he was because of the manner in which he had expressed his beliefs (rather than because of the beliefs themselves) was considered by the EAT in Page v NHS Trust Development Authority (UKEAT/0183/18). See Case Digest: [2019] All ER (D) 04 (Jul).

Immigration

Naomi Hanrahan-Soar, managing associate and Kathryn Denyer, senior practice development lawyer, both at Lewis Silkin, provide an update on the start-up and innovator visa endorsing bodies, and whether they are in a position to endorse applicants for those new types of visa. See News Analysis: An update on the start-up and innovator endorsing bodies.

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.