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In this issue:
Risk & Compliance
Information Law & TMT
Government committed to IP completion day amid COVID-19 pandemic
The government has announced that the IP completion day will stay at 31 December 2020 amid the coronavirus (COVID-19) pandemic. In light of the new coronavirus guidance, negotiating work strands will not convene as previously scheduled. However, the government and European Commission remain in regular contact to consider flexible, alternative ways of continuing the discussions. See: LNB News 18/03/2020 49.
The Prime Minister confirmed, in a statement on 3 February 2020, that it is the UK’s intention to secure adequacy decisions from the European Commission post-Brexit to enable personal data to continue to flow freely from the EU to the UK and Gibraltar after the transition period. The Department for Digital, Culture, Media and Sport (DCMS) has published a pack of explanatory material to ‘provide the information necessary for the Commission to plan and conduct its assessment in good time’. DCMS describe the pack as providing an overview of the UK’s ‘comprehensive legal framework underpinning high data protection standards’. See: LNB News 13/03/2020 70.
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Law360, Expert Analysis: The Information Commissioner’s Office (ICO) has announced an intention to issue some big fines, some in excess of £100m. The theoretical threat of significant fines under the General Data Protection Regulation (GDPR) has become a reality for some businesses and their insurers. However, that may not be the end of the story. How concerned should businesses be that adverse regulatory findings will be used as a springboard for mass claimant lawsuits for damages—akin to class actions? In this article, Rayhaan Vankalwala and Ioanna Lamprinaki, associates, and Annabel Gillham partner at Morrison & Foerster LLP explore how these lawsuits are arising in the UK, and the potential financial exposure and the risk of doomsday outcomes for defendant organisations. See News Analysis: UK group data breach claims pose big financial risks.
The Court of Appeal has considered whether a law firm was entitled to rely on the legal professional privilege (LPP) exemption under the Data Protection Act 1998 (DPA 1998) and whether certain paper files held by that law firm constituted a ‘relevant filing system’ within the meaning of DPA 1998. In summary, the Court of Appeal found that LPP would not apply but also that the relevant paper files did not constitute a ‘relevant filing system’. See News Analysis: Court of Appeal rules on LPP and ‘relevant filing system’ under DPA 1998 (Dawson-Damer and others v Taylor Wessing LPP; Taylor Wessing LPP v Dawson-Damer).
The GDPR,allows for the rules to apply to the processing of personal data in a context such as the one relating to coronavirus. The GDPR also provides legal grounds to enable employers and public health authorities to process personal data in the context of epidemics, without the need to obtain the consent of the data subject. See: LNB News 16/03/2020 50.
Anti-bribery & corruption
Law360, London: Oilfield services firm John Wood Group PLC expects it will cost US$46m to settle investigations by authorities in the US, Brazil and Scotland into potential bribery at a Wood Group subsidiary. See News Analysis: John Wood Group reserves US$46m to settle bribery probes.
A new report published by Transparency International UK has found that companies are being challenged to rethink anti-corruption disclosures. In the report, entitled ‘Open Business’, Transparency International UK sets out how companies can embrace transparency to counter corruption, while also building consumer trust and their reputation. The research sets out the case for greater business transparency, fills out current ‘guidance gaps’ and offers solutions to frequently cited legal challenges to more in-depth disclosures. See: LNB News 12/03/2020 26.
Law360: On Monday, 9 March 2020, US federal prosecutors filed a notice to appeal a US federal judge’s decision to overturn the foreign bribery convictions of former Alstom SA executive Lawrence Hoskins, who was accused of bribing Indonesian officials to gain a US$118m energy contract. See News Analysis: US federal prosecutors to appeal ex-Alstom executive’s bribery acquittal ruling.
AML & CTF
Law360, London: The Chancellor of the Exchequer unveiled plans in the Budget on Wednesday 11 March 2020 to generate more cash to fight financial crime by imposing a new levy on banks, law firms and other businesses that must comply with anti-money laundering regulations. See News Analysis: UK plans economic crime levy to fight money laundering.
The Home Office has shared principles to guide government action in combating human trafficking in global supply chains. The principles have been elaborated upon together with the governments of Canada, Australia, New Zealand and the United States, and launched at the UN General Assembly in September 2018. This initiative aims to provide a framework for the UK’s international approach to tackle modern slavery. See: LNB News 13/03/2020 72.
Coronavirus has dominated fashion month as luxury retailers are just now beginning to grasp the impact of the rapid global spread of the virus. James Gill, partner, and Alan Hunt, managing associate at Lewis Silkin LLP, discuss the implications of the virus on the international retail supply chain and how businesses can minimise the risks it poses. See News Analysis: Coronavirus (COVID-19) and luxury retail—what are the consumer implications?
With the number of cases of the coronavirus continuing to climb, the financial markets are showing signs of strain and some businesses are already feeling the impact of decreased consumer spending in some areas. Many businesses will want to simply acknowledge the coronavirus in their marketing and external-facing comms in a responsible and authentic way. Some will need to communicate updates and guidance to consumers on a regular basis, such as those in the travel and hospitality sectors. Others, including makers and retailers of hand sanitisers and facemasks, but also cupboard basics such as tinned goods and loo paper, may be tempted to take advantage of the unique ‘opportunities’ it presents. Geraint Lloyd-Taylor, Partner at Lewis Silkin LLP. sets out some top tips for brands considering referencing coronavirus in their advertising, marketing, social posts or other communications. See News Analysis: Coronavirus (COVID-19)—FAQs for advertisers.
The International Chamber for Commerce (ICC) has partnered with the New England Complex Systems Institute to publish coronavirus guidance for businesses. The ICC encourages all businesses to take appropriate actions to get ahead of the outbreak as well as developing business continuity plans, readying business continuity plans or implementing business continuity plans. See: LNB News 16/03/2020 17.
The Advertising Standards Authority (ASA) has issued guidance on advertising products which claim to protect users from coronavirus. It follows two ASA rulings on ads which claimed face masks could protect consumers from coronavirus, and were considered misleading, irresponsible and deliberately exploitative of consumer’s fears. See: LNB News 13/03/2020 10.
The government has established a digital markets taskforce which, according to the government, intends to ensure that digital markets empower consumers through choice and control, support quality services and content online, and help business grow by ensuring a fair access to digital markets. See: LNB News 12/03/2020 56.
The Chartered Governance Institute has issued a guidance note for companies planning their annual general meeting (AGM) in light of the coronavirus, produced in conjunction with Slaughter and May and supported by the Financial Reporting Council (FRC), GC100, the Investment Association and the Quoted Companies Alliance. The options described (and issues to consider in relation to each) are: adapting the basis on which the AGM is held; delaying convening the AGM; postponing the AGM; adjourning the AGM; and conducting a hybrid AGM. See: LNB News 17/03/2020 50.
The FRC has published guidance that auditors will need to consider in relation to the coronavirus pandemic. In its guidance, the FRC suggests a broad range of measures that should be contemplated, such as auditors considering the impact of coronavirus on their risk assessment and whether it needs to be revised, the impact on the appropriation of audit evidence, and how group auditors plan to review the work of component auditors. See: LNB News 16/03/2020 25.
The European Commission has published a notice on its website encouraging companies to delay merger notifications until further notice due to the ‘complexities and disruptions’ caused by the coronavirus pandemic. In addition, the Commission also announced that it would temporarily accept (and encourages) submissions in digital format, rather than hardcopy. See: LNB News 16/03/2020 8.
Companies House has announced that it has suspended its same-day service with immediate effect until further notice. Orders which are currently being processed will be completed and sent out to customers. In addition, both the London and Edinburgh offices have closed to the public. See: LNB News 17/03/2020 62.
Corporate analysis: This analysis considers the issues that companies need to consider when reporting on the impact that the coronavirus is having on their business. See News Analysis: Coronavirus (COVID-19)—company disclosure and reporting obligations.
Pensions & Investment Research Consultants Ltd (PIRC) have published their Shareholder Voting Guidelines 2020. The guidelines are published yearly and set out PIRC’s views on various corporate governance issues, such as board structure, directors’ remuneration and environmental, social and governance (ESG) issues. A copy of the guidelines can be purchased from PIRC’s website. See: LNB News 18/03/2020 52.
Andrea Jelinek, Chair of the European Data Protection Board (EDPB), stated that data protection rules do not hinder measures taken in the fight against the coronavirus pandemic. However, the statement adds ‘I would like to underline that, even in these exceptional times, the data controller must ensure the protection of the personal data of the data subjects. Therefore, a number of considerations should be taken into account to guarantee the lawful processing of personal data.’ See: LNB News 16/03/2020 50.
The ICO has published a statement regarding data protection and coronavirus. It recognises that public bodies ‘may require additional collection and sharing of personal data to protect against serious threats to public health.’ By qualifying itself as a reasonable and pragmatic regulator, the ICO ensures that it would consider the compelling public interest in the current health emergency. It notes that public health messages sent to people by phone, text or email by the government, the NHS or health professionals are not considered as direct marketing. The ICO reiterates its availability to offer advice ‘to make sure the law around data protection and direct marketing is clear’. See: LNB News 12/03/2020 76.
MLex: The EU’s principle of ‘data sovereignty’, creating a single market for data to boost EU companies’ access to industrial and personal data, differs starkly from ‘data localisation’ rules that restrict data storage to within a nation’s borders, the head of the data-protection authority for EU bodies, the European Data Protection Supervisor (EDPS), has said. See News Analysis: EU’s ‘data sovereignty’ plan doesn’t imply a hard border, EDPS chief says.
Freedom of information
In a blog related to freedom of information requests and coronavirus, the ICO has said it will take a ‘measured’ approach. The ICO said that it will not penalise public authorities for prioritising other areas, or for adapting their normal approach during this period, even though they cannot extend statutory timescales. It will also take into account the compelling public interest in the health crisis when assessing information rights-related complaints. LNB News 18/03/2020 44.
A council employee has been convicted and fined £400 by the ICO for illegally altering records with intent to prevent disclosure under the Freedom of Information Act 2000 (FIA 2000)—the first successful prosecution under FIA 2000, s 77. See: LNB News 13/03/2020 76.
MLex: The coronavirus outbreak has led to delays in talks between EU governments on the EU’s revamp of Directive 2002/58/EC (the ePrivacy Directive). See News Analysis: EU ePrivacy, terror content talks delayed due to coronavirus (COVID–19) crisis.
The National Cyber Security Centre (NCSC) has released guidance on how to be prepared for home working following the coronavirus situation. The publication includes general recommendations for employers, such as ensuring that employees have devices encrypting data while at rest and that the staff know how to report any problems. See: LNB News 17/03/2020 63.
The European Union Agency for Cybersecurity (ENISA) has released tips for people to adopt when working remotely as part of preventative measures for the spread of coronavirus. General recommendations include securing wifi connection, updating anti-virus systems in place, updating security software, backing up files periodically, locking computer screens if working in a shared space, using a secure connection, and ensuring encryption tools are installed. See: LNB News 17/03/2020 15.
Maternity, parents & carers
A new statutory right to up to 12 weeks’ paid time off work for parents of children who have spent at least a week in neonatal care is to be introduced. See News Analysis: New statutory right to neonatal leave and pay to be introduced by the government.
Georgina Wardrop, senior associate at Taylor Wessing, dissects Jack’s Law, the new right to statutory bereavement leave following the death of a child. She describes the scope of the entitlement, how it operates in practice, notice requirements and its relationship to other statutory family leave and pension rights. See News Analysis: Two-week statutory parental bereavement pay (Jack’s Law)—the pensions implications.
The Department of Health and Social Care has announced that an Emergency Coronavirus Bill (the Bill) is due to be introduced to Parliament. Among other measures, the Bill will remove the rules on waiting days in relation to statutory sick pay and employers with less than 250 employees should be able to reclaim statutory sick pay. See: LNB News 18/03/2020 71.
SI 2020/287: Amendments are made to the Statutory Sick Pay (General) Regulations 1982 to provide that an individual who is isolating themselves, as far as possible, from other people, in line with guidance provided by Public Health England, NHS National Services Scotland and Public Health Wales relating to coronavirus, is deemed to be incapable of work, and therefore entitled to Statutory Sick Pay in England, Scotland, and Wales. These Regulations came into force on 13 March 2020. See: LNB News 13/03/2020 20.
A one-year delay to the extension of the off-payroll IR35 regime to medium or large private sector end clients has been announced in the parliamentary debate on the budget on the evening of 17 March 2020 by the Chief Secretary to the Treasury, Steve Barclay. See News Analysis: IR35 extension to private sector delayed until 6 April 2021.
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