Latest legal and regulatory news: 27th May

Latest legal and regulatory news: 27th May

In this issue:

In-house

Risk & Compliance

Commercial

Corporate

Information law and TMT

Employment


 

In-house

Crafty Counsel videos available in Lexis®PSL

LexisNexis® has entered into a content sharing partnership with Crafty Counsel, the market-leading provider of video guidance for in-house layers.

A selection of Crafty Counsel videos is now available within Lexis®PSL. You can find them in the ‘Training for you and your team’ topic within Lexis®PSL In-house Advisor and they are also available alongside practical guidance and tools in related Lexis®PSL subtopic areas. For quick reference, Practice Note: Crafty Counsel videos in Lexis®PSL In-house Advisor contains a consolidated list of all the videos available.


Virtual networking and forum events

There’s no need to feel isolated if you’re 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.

23 June 2021

The power of an effective learning, development and training strategy

Register now to attend

In this session we explore how a robust approach to learning, development and training can benefit you, your team and your organisation to tangibly demonstrate the value of the legal department. Interactive discussion led by senior counsel and subject matter experts will explore practical approaches on how to deliver effective training to the business; top tips on how to implement a learning and development programme for you and your team; and the opportunities presented by the SQE and the day-to-day implications to consider in the immediate future.

Various dates

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. We have several events planned for the new 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.

 


 

Risk & Compliance

Data protection

MEPs have asked the European Commission to modify its draft decisions on the adequacy of UK data protection and whether personal data can be safely transferred to the UK. This follows concerns raised by the European Data Protection Board, which (among other things) considered that the UK’s bulk access practices, onward transfers and its international agreements require more clarification. The resolution states that if the implementing adequacy decisions are not amended from their current form, national data protection authorities should suspend transfers of personal data to the UK if they deem there is a possibility of indiscriminate access. See: LNB News 21/05/2021 69.

The Information Commissioner’s Office (ICO) has ordered American Express Services Ltd (Amex) to pay a £90,000 fine after sending over four million unsolicited marketing emails between 1 June 2018 and 21 May 2019. See: LNB News 20/05/2021 34.

The ICO has published a case study on the application of the Children’s Code harms framework in the gaming sector. The company Square Enix has shared its experience by dividing it into two steps: mapping children’s data journeys and reflecting on risks and children’s rights. See: LNB News 25/05/2021 93.

The European Data Protection Supervisor, Wojciech Wieriórowski, has hailed the General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) as ‘a sensational achievement for Europe and its citizens’. However, he has highlighted a number of shortcomings, emphasising the need to increase enforcement actions, calling on authorities to join forces and utilise mechanisms to aid co-operation, and insisting that new proposals for digital markets should not diminish the role played by the EU GDPR in the EU legal system. See: LNB News 25/05/2021 90.


Financial crime

The Financial Action Task Force has published a collection of national risk assessments which are intended to ‘increase global understanding’ of the risks posed by money laundering and terrorist financing. Publication of the risk assessments is voluntary and is intended to help countries to assess where their own vulnerabilities lie. See: LNB News 26/05/2021 56.

MLex: NatWest Bank's UK court case on criminal money laundering charges has been delayed for a second time, the Financial Conduct Authority (FCA) told MLex on 25 May 2021. See News Analysis: NatWest's UK money laundering trial delayed again, FCA says.


Cybercrime

The 2021 CyberUK conference was held on 11 May 2021, where the Secretary of State, Priti Patel, emphasised the scale of cybersecurity threats which UK businesses and persons are subjected to daily, and announced the government’s legislative plans to address them. David Mcllwaine, partner, Mastane Williamson, associate and Alexandra Bertz, trainee solicitor from Pinsent Masons, highlight the implications of cybercrime and how they need to be dealt with. See News Analysis: Handling the threat of cybercrime—recent developments.

The National Crime Agency (NCA) has published the 2021 National Strategic Assessment of Serious Organised Crime (NSA), which states that the frontline in the fight against organised crime must now be online. See: LNB News 25/05/2021 89.


Whistleblowing

On 20 April 2021, the UK’s whistleblowing charity, Protect, launched the ‘Let’s fix UK whistleblowing law’ campaign. The campaign calls on the government to review and update the Public Interest Disclosure Act 1998. But does UK whistleblowing law need fixing? And what could this mean for employers? Helen Almond, senior knowledge lawyer at Addleshaw Goddard, examines these questions. See News Analysis: Make do or mend: what's next for UK whistleblowing law?

A Bill to make provision for an Office of the Whistleblower has had its first reading in the House of Lords. See: LNB News 21/05/2021 1.


Human rights

Organisations and individuals can find evidence of action and progress made by the UK across 12 human rights topics on the human rights tracker. The Equality and Human Rights Commission (EHRC) says that new human rights topics added to the site include the equality and human rights legal framework, mental health and political and civil participation. The human rights tracker was launched in 2019 to provide a brief summary of key actions that the government has taken since 2016. See: LNB News 21/05/2021 67.


 

Commercial

Advertising, marketing & sponsorship

The Competition and Markets Authority (CMA) has published its views on the types of misleading environmental claims about products that could break the law. The CMA is now seeking views on draft guidance for business about green claims and are inviting views of anyone who buys or sells products which claims to be eco-friendly. The consultation will run until 16 July 2021, with the aim of publishing the final guidance by the end of September 2021. See: LNB News 21/05/2021 76.

The Advertising Standards Authority has published its response to the CMA consultation. See: LNB News 24/05/2021 11.


Consumer protection

The CMA has announced that, following CMA action, McAfee has extended its refund rights for those customers that have had contracts auto-renewed. See: LNB News 25/05/2021 94.


Contracts

In a case involving the court’s approach to the incorporation into a contract of general terms which were inconsistent with an expressly agreed term between the parties, the Court of Appeal held, in reversing the High Court’s decision, that the buyer was prevented from bringing a claim against the seller that the goods were not in accordance with the contractual specification. Written by Michael Budd, partner and head of company commercial at Longmores Solicitors. See News Analysis: General terms conflicting or inconsistent with expressly agreed terms (Septo v Tintrade).

The Supreme Court has ruled that for limitation purposes if a cause of action accrues at midnight, the first day of the limitation period starts the next day and if a cause of action accrues part way through a day, that day is excluded from the computation of time. This distinction is key for parties who (as in this case) issue a claim right at the end of the limitation period and where the cause of action accrues at midnight. Written by Harriet Campbell, professional support lawyer at Stephenson Harwood LLP. See News Analysis: Have I issued my claim in time? Let me count the days (Matthew v Sedman).


Coronavirus (COVID-19).

 

Law360, London: A brewery has settled a dispute with its insurer over whether Royal & Sun Alliance (RSA) should be forced to cover the pub chain's alleged £1.7m losses resulting from coronavirus lockdowns across Britain. See News Analysis: Coronavirus (COVID-19)—Brewery settles £1.7m claim (Camerons Brewery v RSA).

A franchisor’s designation of coronavirus (COVID-19) as force majeure was subject to an implied duty of rationality. Failure to take a relevant factor into account breached this duty and entitled the franchisee to terminate the contract. Written by Po-Siann Goh, senior associate at Allen & Overy, see News Analysis: Keep rational and carry on—designating coronavirus (COVID-19) as force majeure (Dwyer v Fredbar).


Franchising

The High Court has found in favour of a franchisor on a number of issues arising out of its termination of a franchise agreement for repudiatory breach by a franchisee. However, it held that a 12-month post-termination restriction on the ability of the franchisee to carry on a business similar to that covered by the franchise agreement was unreasonable and unenforceable. Written by Fiona Boswell, partner at Knights plc, see News Analysis: Franchise post-termination restrictions held unenforceable (Dwyer (UK Franchising) Ltd v Fredbar Ltd and another).


International

HMRC has updated its import, export and customs guidance to reflect the post Brexit regime. The update covers the period from 17 May 2021 to 24 May 2021. See: LNB News 24/05/2021 44.


Corporate

Corporate Governance

The Financial Reporting Council has published research suggesting that good corporate governance requires an ‘effective feedback loop’ between boards and the workforce, with a focus on substantial engagement, to establish ‘meaningful dialogue’. See: LNB News 25/05/2021 16.


Brexit

The International Accounting Standards (Delegation of Functions) (EU Exit) Regulations 2021, SI 2021/609 are made in exercise of legislative powers under the Companies (Audit, Investigations and Community Enterprise) Act 2004 in connection with IP completion day. They delegate the responsibility for the adoption of international accounting standards for use within the UK from the Secretary of State to the UK Accounting Standards Endorsement Board (the UK Endorsement Board). They came into force on 22 May 2021. See: LNB News 02/02/2021 8.


 

Information law and TMT

Data protection

MLex: EU companies will soon receive updated international data-transfer tools after a committee of the EU’s governments unanimously approved the European Commission's draft proposals for standard contractual clauses (SCCs), MLex has learned. See News Analysis: EU companies to get updated data-transfer tools as governments approve SCCs.


Data protection

The European Commission has published guidance and question and answers (Q&As) on how the Code of Practice on Disinformation will be effective in countering disinformation. The guidance establishes expectations, and calls for further signatories and participation to the Code. See: LNB News 26/05/2021 45.

The European Data Protection Board (EDPB) has announced the adoption of opinions on draft decisions on transnational codes of conduct presented to the EDPB, both of which relate to cloud providers (the EU CLOUD and Cloud Infrastructure Services Providers in Europe codes). The EDPB also adopted a statement on the proposed Data Governance Act and recommendations on the legal basis for the storage of credit card data for the sole purpose of facilitating further online transactions. See: LNB News 21/05/2021 9.


Internet

The European Parliament has adopted a resolution on the digital future of Europe, reiterating the need for common EU rules on accessible and human-centric technology. MEPs focused in particular on artificial intelligence as a technology that can enable and support the digital transition of both the private and public sectors in Europe and urged more support to be given to small and medium enterprises. See: LNB News 21/05/2021 68.


Media

The European Commission has launched various actions to support European cultural and creative sectors in light of the Creative Europe 2021-2027 programme. Creative Europe will allocate approximately €300m to help in the collaboration of professionals and artists across disciplines and borders, in addition to increasing the competitiveness of cultural sectors while ensuring they become greener and more inclusive. See: LNB News 26/05/2021 52.


New technologies

With the increasing interest in cryptocurrency and the push towards meeting climate objectives, it is no great surprise that the sustainability of cryptocurrency has rapidly become a topical issue. Ben Mendelson, associate at Chronos Law, discusses the environmental impact of cryptocurrencies, as well as the aims of the Crypto Climate Accord, launched ahead of COP26. He also considers the legal considerations involved in ‘greening’ cryptocurrencies. See News Analysis: A green future for Bitcoin—is sustainable cryptocurrency possible?

The European Commission has announced its proposed first-ever legal framework for regulating artificial intelligence (AI) systems (the framework is referred to throughout this article as the ‘AI regulation’). Laura Coleclough, senior associate at Penningtons Manches Cooper, discusses the proposed regulation. See News Analysis: An overview of the EU’s proposed legal framework for regulating artificial intelligence.


Cybersecurity

The European Parliament has voiced its support of the new cybersecurity conference centre that is being established in Bucharest. It has said that through the gathering of information and expertise, the initiative will encourage innovation from small businesses, while also bolstering Europe’s defences against cyber risks and attacks. See: LNB News 20/05/2021 76.


Employment

Equality

In the seventh in a series of articles exploring how diversity and inclusion can play a part in shaping the ‘new normal’ as businesses move out of lockdown as an opportunity to ‘build back better’, Steven Cochrane, Partner, and Rebecca Hayes, Senior Associate, of CMS (London), consider how employers should act in the light of evidence that COVID-19 poses a significantly higher risk to individuals with BAME backgrounds. See News Analysis: How can employers protect their BAME employees following evidence about the disproportionate impact from COVID-19?


immigration

The Home Office and UK Visas and Immigration have updated guidance for caseworkers, specifically on how to consider applications made under the EU settlement scheme. The EU settlement scheme allows any EU, EEA or Swiss citizen and their families to apply in order to continue living in the UK after 30 June 2021. If successful, this gives a settled or pre-settled status. See: LNB News 24/05/2021 57.

The Home Secretary has laid before Parliament a legal migration and border control strategy statement which sets out the Home Office's intended work programme for 2021 and 2022 in the area of legal migration, including ongoing changes to application processes to achieve a digital by default system by the end of 2024. See: LNB News 24/05/2021 72.


Pay

HMRC has published new guidance setting out steps to calculate a worker’s statutory payment entitlement where the worker’s intermediary has received amounts net of income tax and Class 1 primary national insurance contributions (NICs) under the off-payroll working rules.

See: LNB News 25/05/2021 64.

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