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In this issue:
Risk & Compliance
Information Law & TMT
Brexit Bulletin—the future UK—EU relationship
With negotiations on the future UK-EU relationship under way, the House of Commons Library has published a briefing paper outlining the procedure for negotiations, key objectives of both parties, and possible contentious issues. Among other things, the briefing discusses data adequacy (section 4.7) and exchange of law enforcement data (section 4.8). See: LNB News 03/03/2020 37.
Brexit Bulletin—key updates, research tips & resources
We have published an update to our Brexit Bulletin—key updates, research tips and resources. The latest edition includes further Brexit Q&As answering your recent questions on the latest Brexit developments. Subjects covered in this edition include Brexit SIs which are no longer in force and key milestones in the implementation period and future relationship negotiations. See: LNB News 28/02/2020 63.
Flying Solo Event, 25th March 2020
LexisNexis and Radius Law are hosting a free ‘Flying Solo’ event on 25th March 2020 for in-house lawyers working solo or in small teams.
The rewards of working in a smaller in-house team are many, yet it can feel isolating. This free-to-join forum brings together in-house lawyers working solo or in smaller teams to network and learn from one another. This event will provide a chance to connect, swap stories, debate topical issues and share ideas. Click here to find out more about the event and to register your interest.
Risk & Compliance monthly highlights
This month’s edition of Risk and Compliance highlights includes: (1) GDPR & data protection; (2) anti-bribery & corruption; (3) AML & CTF; (4) sanctions & export controls; (5) information management & security; (6) a selection of other news and updates; and (7) all the latest new and updated content. See Practice Note: Risk & Compliance monthly highlights—February 2020.
Anti-bribery & corruption
The Serious Fraud Office (SFO) has agreed seven deferred prosecution agreements (DPAs) since they were introduced by Schedule 17 of the Crime and Courts Act 2013. Following the latest court-approved DPA in the Airbus bribery case, the SFO's divisional head, Camilla de Silva, sets out its approach to deciding whether to pursue a DPA rather than a prosecution and answers critics who consider it a soft option. See News Analysis: Punishment and remediation—the SFO’s approach to DPAs.
A jury has acquitted three former Barclays executives of fraud over the bank’s emergency fundraising during the financial crisis after one of the most high-profile prosecutions ever brought by the SFO. See News Analysis: Ex-Barclays executives acquitted in Qatar fraud case.
Britain’s top white-collar crime enforcer expressed disappointment that the government has not proposed legislation to make businesses liable when their employees break the law, but still hopes to see more laws targeting companies for failing to prevent corporate crimes. See News Analysis: SFO chief calls for new laws to fight corporate crime.
The ICO has published guidance for organisations wanting to develop Codes of Conduct or Certification schemes under the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679. The ICO has also announced that proposals for GDPR Codes of Conduct or Certification scheme criteria can now be submitted to the ICO for approval. See: LNB News 02/03/2020 12.
Cathay Pacific Airways Ltd has been fined £500,000 by the Information Commissioner’s Office (ICO) as it failed to ‘protect the security of its customers’ personal data.’ According to the ICO, the international airline lacked suitable security measures between October 2014 to May 2018, which led to the exposure of 9.4m customers’ personal details—111,578 from the UK. See: LNB News 04/03/2020 40.
The ICO has also fined CRDNN Ltd the maximum amount of £500,000 for making more than 193 million automated nuisance calls between 1 June and 1 October 2018. The calls were made from ‘spoofed’ numbers, meaning that they could not be identified. According to the ICO, the company broke the law by failing to gain consent from phone owners to make calls and failing to provide an opt out system. See: LNB News 02/03/2020 29.
The Court of Appeal held that a disclosure order obtained by the FRC against Sports Direct in respect of material covered by legal professional privilege (LPP) pursuant to the FRC’s statutory information gathering powers under the Statutory Auditors and Third Country Auditors Regulations 2016, SI 2016/649 (SATCAR), was wrong in law. The authorities, properly understood, did not support a re-interpretation of the exceptions to LPP, and that whether LPP had been modified or abrogated was to be viewed, in the present case, as one of statutory construction only. Written by Sandip Patel QC, managing partner, at Aliant (London). See News Analysis: Court of Appeal confirms legal privilege applies to regulatory disclosure request (Sports Direct International Plc v The Financial Reporting Council).
The issue raised on the appeal in Allen v Dodd was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract? It was confirmed that, if a defendant honestly believes that the act they procure will not amount to a breach of contract, they are not liable in tort even if their belief is mistaken in law. It matters not that a defendant’s erroneous belief is caused by their own ignorance or as a result of incorrect advice they receive from their lawyers. Written by Georgia Whiting, barrister, at 4 King’s Bench Walk. See News Analysis: Inducing a breach of contract—clarification of what amounts to a sufficient state of mind (Allen v Dodd).
The ICO has opened a consultation for online service providers to indicate what type of support the ICO should provide them with. It follows the ICO’s recent publication of its final version of their code of practice aimed at safeguarding children’s personal data. There will be a 12 month transition period for service providers to comply. The consultation closes on 27 March 2020. See: LNB News 27/02/2020 12.
The Office for National Statistics has released a list of the mergers and acquisitions (M&A) involving UK companies between October and December 2019. This list only includes those M&A transactions that were £1m or more and which resulted in a change of control of the target company. Over that period, domestic M&A was valued at £2.4bn, inward M&A, £13.4bn and outward M&A, £3.5bn. The year of 2019 saw the values of domestic, inward and outward M&A all decrease in comparison to 2018. See LNB News 03/03/2020 72.
Electronic execution of documents
The Lord Chancellor and Secretary of State for Justice, Robert Buckland, has made a written ministerial statement in response to the Law Commission’s report titled ‘Electronic Execution of Documents’. The Minister agrees with the report that formal primary legislation is not required to reinforce the validity of electronic signatures as the current framework provides sufficient clarity and confidence. See LNB News 04/03/2020 36.
Advocate General (AG) Szpunar has opined on the conditions that must be fulfilled in order for a consent to be regarded as ‘specific and informed’ and ‘freely given’ under EU data protection law. In summary, the AG opined that the Court of Justice should conclude that data subjects intending to contract for the provision of telecommunication services do not give valid consent under EU data protection laws when they are required to state, in handwriting on an otherwise standardised contract, if they refuse to consent to the photocopying and storage of identity documents. See: News Analysis: Advocate General’s opinion—meaning of consent under data protection law (Orange Romania SA v Autoritatea Națională de Supraveghere a Prelucrării Datelor cu Caracter Personal).
The government has announced measures to support businesses and individuals as the changes to the off-payroll working rules are to be implemented by 6 April 2020. Aside from cases in which there has been deliberate non-compliance, HMRC will take a ‘light touch’ approach towards penalties. The measures include preventing businesses from having to pay penalties for inaccuracies in the first year and the publication of detailed guidance on the reforms. See: LNB News 27/02/2020 51.
The government has responded to the review of changes to the off-payroll working rules with confirmation that the new rules will apply from 6 April 2020. Among the recommendations adopted are: a requirement for clients to provide workers/agencies on request with information about the size of their organisation and whether they are in scope of the rules; and ensuring that clients based overseas with no UK presence will be outside the scope of the new rules. See: LNB News 27/02/2020 85.
Pay & benefits
The Law Society has recommended that trainee solicitors should be paid £22,541 in London and £19,992 outside of London as good practice. This rate will come into force on 1 May 2020. Employers should implement the increase as soon as possible, or at a minimum within six months. See: LNB News 27/02/2020 74
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