Latest legal and regulatory news: 20th November 2020

Latest legal and regulatory news: 20th November 2020

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Additional news—daily and weekly news alerts

Dates for your diary

Useful information

In-house

LexTalk®In-house: a Lexis®PSL community  


 

Risk & Compliance

Data protection

The Information Commissioner’s Office (ICO) has issued a statement in response to new recommendations from the European Data Protection Board (EDPB) on international transfers of personal data following the Court of Justice’s decision in Schrems II, Case C-311/18 (see LNB News 11/11/2020 75). The ICO says it is reviewing the recommendations published by the EDPB. See: LNB News 16/11/2020 24. In the meantime, we’ve updated all the tools and guidance in our International transfers of personal data subtopic to reflect the EDPB recommendations.

The Departments for Digital, Culture, Media & Sport and Business, Energy & Industrial Strategy (BEIS), along with the Office for Civil Society and the ICO have published updated guidance on data protection and data flows. See: LNB News 16/11/2020 108.

The ICO is allowing organisations less latitude for pandemic-related reasons, in relation to their compliance with data protection rules, judging by updates to two of the ICO’s guidance documents. See News Analysis: ICO tightens approach to data protection enforcement during pandemic.

The ICO has fined Ticketmaster UK Ltd (Ticketmaster) £1.25m for its failure to protect customers’ payment details. The ICO found that Ticketmaster did not put appropriate security measures in place to prevent cyber-attacks on a chat-bot which was installed on its online payment page, in breach of the GDPR. As a result, the payment cards of 60,000 Barclays Bank customers had been subject to known fraud, and 6,000 Monzo Bank customers had to have bank cards replaced after suspected fraudulent use. See: LNB News 13/11/2020 30 and News Analysis: Ticketmaster plans to challenge UK regulator’s GDPR fine over 2018 data breach.

MLex: Germany’s 1&1 Telecom has welcomed a ruling by a German district court that cut its multimillion-euro data-protection fine to €900,000, but has said it is examining the judgment and reserves the right to take further legal action. See News Analysis: 1&1 Telecom sees its hefty data-protection fine significantly cut by German court.

The European Court of Justice has given a further ruling on the requirements for valid consent under the GDPR. The court concluded it is for the controller to demonstrate the data subject had consented as required and had been given the required information beforehand in an appropriate form. The court also ruled that a consent box ticked by a sales representative in a contract ultimately signed by the data subject was not sufficient to show consent. Consent might also be challenged if the terms of the contract were unclear as to whether it was possible to conclude the contract without consent or where additional steps (such as filling in a further form) were required from those who refused their consent. See News Analysis: Court of Justice rules on consent under data protection law (Orange România SA v Autoritatea Națională de Supraveghere a Prelucrării Datelor cu Caracter Personal (ANSPDCP)).


 

Financial crime and sanctions

Law360: The UK’s transition out of the EU will end on 31 December 2020 and the UK’s sanctions regime will then come into effect. The domestic sanctions regime will transpose the restrictions currently imposed by the EU sanctions regime. Satindar Dogra, partner, Mikhail Vishnyakov, managing associate and Irene Obahiagbon, associate at Linklaters LLP discuss the UK’s future sanctions regime. See News Analysis: UK’s sanctions regime requires unique compliance efforts.

The Financial Action Task Force (FATF) has published the opening remarks of FATF Executive Secretary, David Lewis, at the V20 summit. Since the last V20 meeting in 2019, Lewis commented that ‘the sector has continued to grow, evolve and edge closer to mainstream adoption’ with understanding of the importance of anti-money laundering and counter terrorist financing controls increasing. Lewis highlighted that 25 out of 39 FATF members have introduced new laws and regulations to implement FATF global Standards and industries have developed technological solutions to enable compliance. See: LNB News 17/11/2020 78.

The National Cyber Security Centre has released a white paper that describes the security benefits to be gained from adopting a good cloud service, many of which have proved difficult to achieve in traditional IT deployments. See: LNB News 16/11/2020 50.


 

Business & human rights

The World Benchmarking Alliance (WBA) has published the findings of the fourth edition of its Corporate Human Rights Benchmark (CHRB). The CHRB assessed 230 global companies on their human rights disclosures. Nearly half of the companies assessed did not demonstrate that they are conducting human rights due diligence in line with the UN Guiding Principles on Business and Human Rights. 79 companies scored zero on all human rights due diligence indicators. Camille Le Pors, CHRB Lead at WBA, commented that the number of companies that have made little or no progress in the last 12 months was ‘concerningly large’. See: LNB News 17/11/2020 72.


 

Professional duties

After months of many solicitors working from home, it’s easy to get comfortable. But with complacency comes the risk of non-compliance with your regulatory obligations. Jessica Clay, senior associate at Kingsley Napley LLP, provides a refresher on your duties, the risks involved in remote working, and how you can stay compliant. See News Analysis: Are you getting complacent with compliance?


 

Commercial

Brexit

Secretary of State for BEIS, Alok Sharma, has written to a number of UK business sectors outlining key actions they need to take to prepare for changes taking effect from 1 January 2021, after the end of the Brexit transition period. See: LNB News 18/11/2020 82.

The Cabinet Office has published updated guidance on trading with the EU from 1 January 2021. See: LNB News 17/11/2020 99.

The Department for Transport has published new guidance on transporting goods between Great Britain and the EU from 1 January 2021. See: LNB News 18/11/2020 95.

The Office for Product Safety and Standards has published new guidance on specific product safety and metrology regulations for businesses placing goods on the market in Great Britain and in Northern Ireland from 1 January 2021. See: LNB News 16/11/2020 109.

HMRC has published new guidance on (i) what customs declarations may be required when sending goods from the UK and bringing or receiving goods into the UK from 1 January 2021, and (ii) changes to legal rulings for the classification of goods from 1 January 2021. See: LNB News 16/11/2020 52 and LNB News 13/11/2020 48.


 

Coronavirus (COVID-19)

MLex: Insurers invoked geographical limits in business interruption cover as a key reason why they should not be liable for policyholders’ coronavirus losses on 16 November 2020, as the widely anticipated appeal in the Financial Conduct Authority’s (FCA’s) business interruption insurance test case in the Supreme Court commenced. See News Analysis: Coronavirus (COVID-19)—Insurers’ Supreme Court appeal commences with focus on geographical limits.

MLex: Insurance companies refusing to pay out to businesses in the UK that suffered losses due to the coronavirus pandemic and the related government-enforced lockdown cannot use the excuse that no cover exists because of the widespread nature of the emergency. That was the argument put forward by Colin Edelman QC, counsel representing the FCA, on the second day of the Supreme Court appeal on the FCA business interruption test case. See News Analysis: Coronavirus (COVID-19)—insurers say the worse the virus, the worse the cover, FCA tells Supreme Court.


 

Corporate

AGMs

Corporate analysis: Lexis®PSL Corporate and Market Tracker has conducted research to examine the current trends in shareholder voting patterns at the annual general meetings (AGMs) of FTSE 350 companies during the 2020 AGM season. See News Analysis: Market Tracker trend report—voting results—the AGM season 2020.


 

Public company takeovers

The Takeover Panel has announced that Instruments 2020/1 and 2020/2 have been published to make non-material amendments to the Takeover Code (to come into effect on 31 December 2020). See: LNB News 12/11/2020 97.


 

Corporate governance

The Investment Association has published its 2021 Principles of Remuneration and updated the guidance it issued in April 2020 on executive remuneration in light of the coronavirus (COVID-19) pandemic. The 2021 Principles have received a small number of updates to reflect developments in market practice and expectations. See: LNB News 18/11/2020 23.

The proxy advisory firm, Institutional Shareholder Services, has published its 2021 proxy voting guidelines updates for the UK and Ireland, Europe (including Russia and Kazakhstan), the Middle East and Africa. See: LNB News 13/11/2020 13.

The Quoted Companies Alliance has published a report on adoption of Environmental, Social and Governance (ESG) policies in SME quoted companies. See: LNB News 13/11/2020 91.


 

Accounts and reports

Financial Services analysis: Arun Srivastava, partner at Paul Hastings (Europe) LLP, analyses the new proposed mandatory climate related disclosures for financial institutions that were announced by the Chancellor in his statement on the post-Brexit future of UK financial services. See News Analysis: Climate related disclosures for financial institutions—new UK mandatory requirements.

The FRC has published a review of corporate reporting in relation to cash flow statements and liquidity disclosure requirements. Additionally, the review also addressed the disclosure of liquidity risk. See: LNB News 17/11/2020 33.


 

Coronavirus

The chief executive officer of the FRC has published the annual end of year letter to CEOs, chief financial officers and audit committee chairs. Due to the coronavirus pandemic, the FRC is encouraging companies ‘to consider carefully whether they should lengthen their reporting timetables for 2021’. See: LNB News 12/11/2020 107.

In its Developments in Audit 2020 report, the FRC has called for auditors to concentrate their efforts to address inconsistent audit quality amid the coronavirus (COVID-19) pandemic. Following the latest round of inspections, the FRC found that audit quality remained too inconsistent, with 49 out of 130 audits inspected requiring improvement or significant improvement. See: LNB News 12/11/2020 53.


 

Information Law & TMT

Data protection

The European Commission has published a draft decision and associated draft standard contractual clauses (SCCs) proposed for use by a controller or a processor in the EEA (or that is otherwise subject to the General Data Protection Regulation, Regulation (EU) 2016/679 (the GDPR) as descried in the decision) in order to provide appropriate safeguards under Chapter V (Transfers of personal data to third countries or international organisations) of the GDPR for the transfer of personal data to a processor or a controller established in a third country. The Commission is seeking feedback on the drafts until 10 December 2020 (midnight Brussels time). See: LNB News 13/11/2020 10 and LNB News 13/11/2020 11.


 

New technologies

Amrita V Singh, Steven Pediani, David Robinson and David A Ruston of Marks & Clerk look at recent decisions and practice in Canada, the UK and Europe around the patentability of artificial intelligence (AI). See News Analysis: Patenting AI in Canada, the UK and Europe.


 

Employment

Coronavirus

The Coronavirus Job Retention Scheme (CJRS) furlough scheme is to be extended for all parts of the UK until the end of March 2021. See News Analysis: Treasury Direction published for CJRS extension to end of March 2021 and also Analysis of further updates to HMRC guidance and Treasury Direction on the extended Coronavirus Job Retention Scheme.

HMRC has issued guidance on the penalties that it might charge where an income tax charge has not been notified regarding overpayments made under coronavirus support payments, ie the Job Retention Scheme, Self-Employed Income Support Scheme and the Eat Out to Help Out Scheme. See: LNB News 16/11/2020 8.


 

Health and safety

In a judicial review decision, the High Court in IWGB v SoS for Work and Pensions [2020] EWHC 3050 (Admin) held that the government failed to implement properly in UK law: (1) Article 8(4) and 8(5) of the Health and Safety Framework Directive 89/391/EC so that all workers (not just employees) should be protected against detriment for leaving work (or proposing to leave or refusing to return) or taking (or proposing to take) appropriate steps to protect themselves or other persons in the face of serious and imminent danger; and (2) Article 3 of the Personal Protective Equipment (PPE) Directive 89/656/EC so that the requirements in respect of the supply and use of PPE apply to all workers (not just employees). See News Analysis: Workers, not just employees, should have EU health and safety protections (IWGB v SoS for Work and Pensions).


 

Pay

The Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) Regulations 2020, SI 2020/1296 came into force on 18 November 2020. The Regulations amend how a week’s pay is to be calculated in the case of an employee who has been furloughed under the Coronavirus Job Retention Scheme. See: LNB News 18/11/2020 54.


 

Immigration

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Act makes a provision to end rights to free movement of individuals under retained EU law and to repeal other retained EU laws relating to immigration. It comes into force partly on 11 November 2020, partly on 11 January 2021, and fully on such day as the Secretary of State or the Treasury may by regulations made by statutory instrument appoint. See: LNB News 13/11/2020 43.

The Home Office has provided further details of its priority processing service for sponsor licence applications, with effect from 12 November 2020. See: LNB News 17/11/2020 73.


 

Additional news—daily and weekly news alerts

This document contains the highlights from the past week’s news. To receive all our news stories, whether on a daily or a weekly basis, amend your personal settings within your ‘News’ tab on the homepage by clicking on either ‘Email’ or ‘RSS’ (depending on how you prefer to receive them) on the right-hand side of the blue banner.


 

Dates for your diary

Time

Event

Subjects Covered

30 November 2020

Webinar—Commercial Law

Commercial law—end of year round-up 2020

8 December 2020

Webinar—In-house Counsel

Succession planning

14 December 2020

Webinar—TMT

The European Electronic Communication Code (2020)

31 December 2020

Webinar—In-house Counsel

Dealing with conflicts of interest within your organisation

31 December 2020

Webinar—Commercial Law

Recent developments in commercial contracts (2020)

On demand

Webinar—TMT

FinTech (2020)

On demand

Webinar—TMT

Cloud computing (2020)

On demand

Webinar—TMT

Drones law (2020)

On demand

Webinar—TMT

Influencers and intellectual property (2020)

On demand

Webinar—TMT

(Brief) The Copyright Directive (2020)

 



Useful information

Contact us

Please follow us on Twitter at @inhouse_leaders. You can also keep updated by reading our blog. If you need an overview of the materials in the in-house module, see: In-house—introduction to our materials.


 

In-house

Virtual networking and forum events

There’s no need to feel isolated if you are working from home—join one of our virtual networking or forum events. Even if you aren’t working from home, take some time to network with your peers, find out what challenges they’re facing and how they are meeting those challenges.

8 December 2020
Gift to you
Register now to attend

This session will focus on your personal and career development. There will be an executive coach guest speaker who will address virtual networking and leadership. The session will also include both a commercial and COVID-19 update.

Various dates from November to December 2020
LexisNexis Aspire Forum for Junior In-house Lawyers
To register your interest in joining the events, sign up as an Aspire member today

Aspire is a professional development and networking forum for junior in-house counsel. Following the success of the summer event series, we have several events planned for the remainder of the year to continue supporting you through these uncertain times and provide a platform for you to connect with your peers. Events take place at the same time each month, from 5pm to 6.30pm.
Upcoming subjects include mental health and junior in-house counsel, legal operations, career development and mentoring for junior in-house counsel and, of course, a Christmas quiz and networking social.


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