Latest Legal and Regulatory news update - 22 November 2019

Latest Legal and Regulatory news update - 22 November 2019

In this issue, we highlight our Risk & Compliance forecast, e-commerce,  and employment laws.

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Risk & Compliance
Risk & Compliance forecast

Our new Risk & Compliance forecast (as at 19 November 2019) is now live. This month, we report on issues including (1) AML and CTF; (2) crime prevention; (3) regulation of legal services; (4) competition law compliance; and (5) data protection. You can rest assured we’re tracking forthcoming regulatory changes so you can plan ahead. See: Risk & Compliance forecast as at 19 November 2019.


AML & CTF

The executive secretary of the Financial Action Task Force (FATF), David Lewis, has delivered a speech at the Royal United Services Institute, outlining the context for the forthcoming FATF strategic review. Lewis stated that FATF has identified some positive results among its member states, but that most countries are failing in terms of effectiveness and many are also failing when it comes to technical compliance. Lewis also stated that the current challenge is the implementation of the FATF standards, not the standards themselves, and that the strategic review will focus on how FATF’s evaluation of countries can better promote and enable more effective anti-money laundering (AML) measures and measures to counter financing of terrorism (CFT). See: LNB News 19/11/2019 31.


Data protection

The ICO has published new detailed guidance on special category data, aimed at data protection officers and those with specific data responsibilities in larger organisations, and has also updated its guide to data protection regarding special category data. Ian Hulme, director for regulatory assurance at the ICO, describes special category data as the most sensitive personal data and highlights that the ICO expects controllers to take all necessary precautions to protect this data. A template appropriate policy document is also available. See: LNB News 15/11/2019 17.


Commercial
Advertising, sponsorship & marketing

Instagram has grown into one of the most popular social media platforms in recent years, and now boasts a billion monthly users. Part of this success is due to the method and options for promotion and advertisement that the platform gives brands. Susan Honeyands, partner at TLT LLP, considers how the Instagram Blackout might change this. See News Analysis: How will the Instagram Blackout impact influencer marketing?


E-commerce

The Chancellor of the High Court and chair of the UK Jurisdiction Taskforce, Sir Geoffrey Vos, has launched the LawTech Delivery Panel’s legal statement on cryptoassets and smart contracts. In his speech, Vos stated that following ‘rigorous legal analysis’, the legal statement concludes that cryptoassets generally have all the legal indicia of property and are to be treated as property, according to English legal principles. See: LNB News 18/11/2019 62.

The EU Parliament has approved an amending directive treating online marketplaces as the seller responsible for VAT on goods with a value up to €150 supplied via their platforms to customers in the EU by non-EU businesses. The directive sets out rules for determining the place and time of supply, and the information platforms must collect and report in connection with suppliers and sales made. This directive is one of the final pieces of the Commission’s VAT e-commerce package, due to come into effect in January 2021. See: Closing VAT loopholes for sales through online platforms and LNB News 18/11/2019 56.


Confidential information

Lauren John Godfrey, barrister at Hardwicke Chambers, Lincoln’s Inn, discusses Aviva Insurance Ltd v Oliver [2019] EWHC 2824 (Comm), [2019] All ER (D) 95 (Nov), where the High Court considered the principles applicable to inferential fact finding in the context of a claim of inducing breach of contract and also whether inferences are appropriate when grounded in hearsay evidence. The court also considered the appropriate approach to quantum and specifically whether to order an account of profits or to take a purely damages approach, particularly where there are significant deficiencies in the evidence available to the court. See News Analysis: High Court upholds claim for breach of confidence and inducement to breach contract (Aviva Insurance Ltd v Oliver).


Intellectual property

The European Patent Office (EPO) has launched the new Espacenet, an improved version of the EPO’s patent information search tool. Users will now find it much easier to conduct patent searches and gain access to over 110 million patent documents globally, free of charge. See: LNB News 20/11/2019 52.

 

Corporate
Public company takeovers

Lloyds Bank shareholders lost a £385m (US$495m) claim related to the ill-fated acquisition of HBOS from the height of the financial crisis, as a judge ruled that investors knew that the deal involved risks. See:

Sharp v Blank [2019] EWHC 3096 (Ch) and News Analysis: Lloyds shareholders defeated in claim over HBOS takeover (Sharp v Blank).

 

Equity capital markets

In SL Claimants v Tesco plc [2019] EWHC 2858 (Ch), [2019] All ER (D) 174 (Oct), the High Court considered whether an investor holding listed shares through the computerised CREST system via a custody chain could be said to have an ‘interest in shares’ and could ‘acquire or dispose’ of an interest in shares for the purposes of a claim for compensation under provisions in section 90A of the Financial Services and Markets Act 2000 relating to false or misleading statements by an issuer in published information. See News Analysis: Issuer liability for misleading statements to investors holding dematerialised shares—(SL Claimants v Tesco plc).

 

Cross-border operations

The European Council has adopted a new directive, amending Directive (EU) 2017/1132, in order to better facilitate cross-border conversions, mergers and divisions for EU companies. The directive introduces new rules that establish both comprehensive procedures and simplifications for these three operations. The directive sets out procedures for checking the legality of cross-border operations against relevant domestic legislation and introduces a mandatory anti-abuse control procedure. The directive will enter into force 20 days after publication in the Official Journal and Member States will then have 36 months to adopt the necessary measures. See: LNB News 18/11/2019 63.


Information Law & TMT
Data protection

The European Telecommunications Network Operators’ Association (ETNO) has called on EU Member States to address outstanding issues in the draft ePrivacy Regulation. These issues include the articulation between proposed ePrivacy Regulation and the General Data Protection Regulation, Regulation (EU) 2016/679, the lack of level playing field for digital players, the lack of a coherent protection framework for citizens and the need for future-proof rules. See: LNB News 20/11/2019 41.

The European Data Protection Board (EDPB) has adopted the report on the third annual joint review of the EU–US privacy shield. The EDPB welcomes the US’s efforts to implement the privacy shield, especially ex officio oversight and enforcement actions. See: LNB News 19/11/2019 21.

The executive director for technology policy and innovation at the Information Commissioner’s Office (ICO), Simon McDougall, has announced that the ICO has appointed its first adviser on data ethics, Ellis Parry. McDougall sets out that the ICO has hired Parry amid increased public concern regarding ethical usage of data, with an international consultation carried out in 2018 finding that more than 80% of people believe authorities should play a role when it comes to the relationship between ethics and data protection. See: LNB News 18/11/2019 64.

The EDPB has released its final version of the Guidelines on Territorial Scope following a public consultation on the subject. The guidelines endeavour ‘to provide a common interpretation of the GDPR for EEA Data Protection Authorities when assessing whether a particular processing by a controller or a processor falls within the territorial scope of the legal framework’. Indeed, they intend to clarify GDPR’s application in various situations. Feedback from the earlier consultation has been taken into account by the EDPB and has led to updates to the guidance’s wording and legal reasoning. See: LNB News 14/11/2019 59.

The EDPB has revealed the outcome of its fifteenth plenary session. The topics discussed included the Third Annual Privacy Shield Review, Guidelines on Territorial Scope, Guidelines on Data Protection by Design & Default, an Article 64 Opinion on ExxonMobil Binding Corporate Rules, a response letter to the European Parliament’s committee for Civil Liberties on EU Information Systems and an additional protocol to the Budapest Convention on Cybercrime. See: LNB News 14/11/2019 57.

 

Employment
Equality & diversity

Guidance on gender-neutral drafting has been published by the Office of the Parliamentary Counsel and the Government Legal Department. Both organisations are at the heart of drafting legislation in the UK and believe there is no reason why gender-neutral drafting cannot become the norm across the profession. The guidance is supported by Global Butterflies and the InterLaw Diversity Forum. See News Analysis: New Guide to Gender-Neutral Drafting.

The Financial Conduct Authority (FCA) has published a research note on gender diversity in UK financial services. The note states that while the general lack of diversity in UK financial services firms is well known, how visible women are across different levels of seniority is not. Existing research on female representation is also often restricted to key market leaders and consistent measurement has been challenging. See: LNB News 18/11/2019 49.

 

Unfair dismissal

The extent to which an employee’s right to freedom of speech under Article 10 of the European Convention on Human Rights should be taken into account by domestic courts when considering the legality of an employer’s decision to dismiss an employee for publishing information, eg information linked to the professional sphere in which they are employed onto their own website, was considered by the European Court of Human Rights (ECtHR) in Herbai v Hungary (Application no 11608/15). See News Analysis: Courts must balance employee’s right to freedom of expression and employer’s right to protect business interests (Herbai v Hungary).

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