Latest legal and regulatory news: 10th June

Latest legal and regulatory news: 10th June

In this issue:

In-house resources

Risk & Compliance

Commercial

Corporate

Information Law & TMT

TMT

Employment


 

In-house resources

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 lawyers.

A selection of Crafty Counsel videos are 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. 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.

21 July 2021

Attenborough, ESG and Net Zero: How GCs are driving the sustainability agenda

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Businesses are facing increasing pressure to align with Environmental, Social and Governance (ESG) criteria, driven by factors such as increasing government legislation, investor activism and customer demands. Much of this is related to the climate crisis, which isn’t going away. We are delighted to welcome Lawyers for Net Zero to discuss how legal teams are driving change—and increasing their organisational influence as a result. Join us to understand why Net Zero is such a critical agenda, for business, society and our shared future; the pivotal role of the legal team and to hear case studies on how legal teams are taking action including good practice, learnings and top tips.

22 September 2021

Disrupted or accelerated? Digital transformation in legal teams

Register now to attend

 

Businesses are facing increasing pressure to align with Environmental, Social and Governance (ESG) criteria, driven by factors such as increasing government legislation, investor activism and customer demands. Much of this is related to the climate crisis, which isn’t going away. We are delighted to welcome Lawyers for Net Zero to discuss how legal teams are driving change—and increasing their organisational influence as a result. Join us to understand why Net Zero is such a critical agenda, for business, society and our shared future; the pivotal role of the legal team and to hear case studies on how legal teams are taking action including good practice, learnings and top tips.

 

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

Information Law analysis: On 4 June 2021, the European Commission published its final Implementing Decision adopting new standard contractual clauses for the transfer of personal data to third countries. This follows the draft implementing decision and clauses issued by the Commission for consultation on 12 November 2020. The Implementing Decision is effective on the 20th day following its publication in the Official Journal of the EU (OJEU), which occurred on 7 June 2021, meaning that the clauses can be used from 27 June 2021. Ariane Mole, Ruth Boardman and Gabriel Voisin, partners at Bird & Bird explain. See News Analysis: The new EU GDPR standard contractual clauses for international transfers, LNB News 04/06/2021 47 and LNB News 07/06/2021 21.

The European Commission has also published a decision and associated standard contractual clauses (SCCs) to fulfil the requirements for contracts between controllers and processors in Article 28(3) and (4) of Regulation (EU) 2016/679, the EU’s General Data Protection Regulation (the EU GDPR) (and of equivalent requirements of Article 29(3) and (4) of Regulation (EU) 2018/1725 which governs the processing of personal data by EU institutions). See: LNB News 07/06/2021 15.

Commission Implementing Decision (EU) 2021/915 of 4 June 2021 on SCCs between controllers and processors under Article 28(7) of Regulation (EU) 2016/679 of the European Parliament and of the Council and Article 29(7) of Regulation (EU) 2018/1725 of the European Parliament and of the Council, has been published in the Official Journal. See: LNB News 07/06/2021 20.

The High Court has ruled that an EU representative appointed under Article 27 of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR) is not directly liable for the non-compliance of the entity it represents. The representative’s liability is instead limited to its compliance with its own statutory obligations (in its capacity as such). The ruling is a pragmatic and welcome interpretation of some ambiguity within Article 27 and Recital 80 of the GDPR, which had previously caused some uncertainty. It is worth noting that, following Brexit, businesses which are based outside the EU and UK and which process personal data of EU or UK data subjects now need to consider the appointment of not only an EU representative but also a UK representative. Written by Hamish Corner, partner at Shoosmiths LLP. See News Analysis: Liability of an EU representative appointed under Article 27 of the GDPR (Rondon v LexisNexis Risk Solutions).

The Information Commissioner’s Office (ICO) has fined the Conservative Party £10,000 for sending 51 marketing emails to people who did not want to receive them. The emails promoting the party’s political priorities were directly addressed to the people they were sent to by name and included a link directing them to a website for joining the Conservative Party. See: LNB News 03/06/2021 10.

The ICO has also fined Colour Car Sales Ltd (CCSL), Solarwave Ltd and LTH Holdings a total of £415,000 for sending nuisance marketing to people about car finance, solar panels and funeral plans. All three companies did not have the valid consent required to send direct marketing and this is against the Privacy and Electronic Communications Regulations 2003, SI 2003/2426. See: LNB News 08/06/2021 72.

NOYB, a non-profit organisation whose name is a play on ‘none of your business’, has announced it has developed software to automatically detect websites that use deceptive practices to frustrate the public into consenting to cookies. The non-profit has said that 90% of users agree to cookies, when statistics show that only 3% actually want to agree. In an opening salvo, NOYB has sent draft GDPR complaints to 500 companies, and plans to send another 10,000 over the next year. NOYB has said that it will give companies a one-month grace period before filing official complaints. See: LNB News 07/06/2021 50.


Financial crime

The Crown Prosecution Service (CPS) has updated its guidance on money laundering offences, particularly in relation to the prosecution of standalone ‘failure to disclose’ cases under section 330 of the Proceeds of Crime Act 2002 (POCA 2002). The guidance now clarifies that a POCA 2002, s 330 offence can be prosecuted after 2 June 2021 irrespective of whether an offence of money laundering has been substantiated. The updated guidance aims to encourage people to come forward to disclose any suspicion of money laundering to law enforcement. See: LNB News 04/06/2021 40.

The Law Commission has opened a consultation on whether the law regarding corporate criminal liability can be improved to adequately punish offences committed by corporations, and if so, in which ways. Potential improvements suggested by the Law Commission include reforming the identification principle to encompass companies with complex decision-making structures, and extending the scope of ‘failure to prevent’ offences to cover fraud and other offences an employee may commit which benefit the company. Responses should be sent in by 31 August 2021. See: LNB News 09/06/2021 86.

Law360: International companies and their lawyers have long struggled to satisfy competing imperatives contained in US and EU legislation across myriad regulatory regimes. See: Warnings and guideposts from EU sanctions blocking case.


 

Commercial

Advertising, marketing and sponsorship

Law360: Google will tweak its advertising technology offerings for connecting advertisers and publishers and pay a €220m ($US 268.3m) fine, under an antitrust settlement that French antitrust authorities announced on 7 June 2021. See: Google settles French antitrust probe for $US 268m.


Brexit

The Cabinet Office has published the policy paper ‘Summary: The UK’s new relationship with the EU’, which outlines the state of play following the UK’s withdrawal from the EU. In the explainer, an overview of ‘what has changed, and what remains the same’, is provided. Areas covered include: travelling to the EU, living, working or moving to the EU, trade in goods and services, intellectual property, road transport, public procurement, participation in EU programmes, and fisheries. See: LNB News 09/06/2021 74.


Competition

The European Commission has announced an initiative to revise EU competition rules on horizontal agreements, specifically to revise the exemption rules on research and development, and specialisation agreements and the accompanying guidelines. The Commission aims to provide companies with clear guidance on horizontal co-operation agreements that can be concluded without the risk of competition law infringement, and aims to simplify administrative supervision of horizontal co-operation agreements by national competition authorities, national courts and the Commission. The consultation closes on 5 July 2021. See: LNB News 07/06/2021 78.


Contracts

The case of Fisken v Carl concerned a contract for the sale of a classic Ferrari car whose gearbox had become separated. There was a dispute as to whether or not the claimant was a party to the contract, in circumstances where the claimant was identified in the heading of the contact as ‘agent for an undisclosed principal’ but where its signature as a party to the contract was unqualified. The court held that the claimant was indeed the contracting party, and made findings as to the effect of the sale contract by reference to the principles set out in SGA 1979. Written by John Bignall, barrister at 7 King’s Bench Walk. See News Analysis: Contract—sale of goods, identity of contracting parties (Fisken v Carl).

The case of Brown-Forman Beverages Europe v Bacardi UK dealt with the distinction between guarantees and indemnities in a complex written agreement. Having decided that certain obligations were guarantees and others indemnities, the case goes on to deal with the effect of a claim of equitable set-off and the extent to which the variation of the underlying agreement can release a guarantor from liability, following the so-called ‘rule in Holme v Brunskill’. The judgment also contains a very useful summary of the various Supreme Court authorities on interpretation of contracts and implied terms. Written by Steven Fennell, barrister at Exchange Chambers. See News Analysis: Guarantees, indemnities, set-off and variation (Brown-Forman Beverages Europe v Bacardi UK).


E-commerce

The European Commission has proposed a framework for European Digital Identity, available to all EU citizens, residents and businesses within the EU. Through European Digital Identity wallets, citizens will be able to provide their identity and share electronic documents and access online services with their national digital identification. Large platforms will be required to accept the use of European Digital Identity wallets on the request of the user. The Commission has announced that under the new regulation, Member States will offer citizens and businesses digital wallets that link to their national digital identities with proof. The new European Digital Identity wallets provide users control of the data they share and enables access to services online without having to use private identification methods. See: LNB News 04/06/2021 7.


Intellectual property

The government has opened a consultation in search of views on the UK’s future regime for the exhaustion of intellectual property rights. The government says that the future regime will underpin future rules on parallel imports into the UK. Following the UK’s exit from the EU, the government now can change these rules. The consultation will run until 31 August 2021. See: LNB News 07/06/2021 67.


International

The Department for International Trade has published the speech of the Secretary of State of International Trade, Liz Truss, who spoke at DLA Piper on future opportunities for the UK in sectors like services and digital. See: LNB News 09/06/2021 79.

The Department for Environment, Food & Rural Affairs has published updated guidance for stakeholders. Subjects covered in this guidance include importing food and drink, importing composite food products and importing fish and fishery products. See: LNB News 09/06/2021 8.

HMRC has updated its import, export and customs guidance to reflect the post-Brexit regime. The update covers the period from 31 May 2021 to 7 June 2021. See: LNB News 07/06/2021 16.


Supply of goods

The European Commission has published the Product safety – Publication of references to standards under the General Product Safety Directive initiative. The initiative decision aims to establish the compliance of specific European standards with the general safety requirements of the General Product Safety Directive (GPSD) and publish reference to the standards in the Official Journal of the European Union. Products meeting the standards will conform with the GPSD in the risks and risk categories, which will help businesses and market surveillance authorities as well as improving the safety of consumers. See: LNB News 03/06/2021 5.


 

Corporate

The Department for Business, Energy, and Industrial Strategy (BEIS) has published a study into the relationships between CEO performance targets, the pay incentives associated with those targets and firm investment for companies listed on the FTSE All-Share Index. See: LNB News 07/06/2021 84.

The Quoted Companies Alliance (QCA) has published a report on the workings of board performance reviews in relation to small- and mid-sized enterprises (SMEs). The report assesses how the reviews are undertaken, considers the varying approaches between companies, and looks at how effective the different approaches are. The report is freely available for non-members to download from the QCA website, subject to the provision of their name and email details. See: LNB News 04/06/2021 15.

The Climate Disclosure Standards Board (CDSB) has published a joint statement issued by ten stakeholders with a common interest in sustainable finance, including the Association of Chartered Certified Accountants (ACCA), Accountancy Europe, CDSB, the World Wildlife Fund (WWF), Schroders, the European Sustainable Investment Forum (Eurosif) and ShareAction, on the European Commission’s sustainable corporate governance initiative. See: LNB News 09/06/2021 28.


Equity capital markets

Corporate analysis: HM Treasury is consulting on a new targeted power to allow the government to block company listings on national security grounds. The proposals include companies within scope making additional disclosures about their business, management, major shareholders and any offer of securities. Views are sought on the content, timing and method of the disclosures. The consultation closes on 27 August 2021. See News Analysis: Analysing the Treasury consultation on the power to block listings on national security grounds and LNB News 07/06/2021 37.

Law360, London: In Bankia SA v Union Mutua Asistencial de Seguros C-910/19, the European Court of Justice (ECJ) ruled on 3 June 2021 that sophisticated investors can sue companies under the EU's prospectus rules if the information that they publish about their business ahead of offering securities is misleading. See: EU prospectus rules allow sophisticated investors to sue and also LNB News 17/02/2021 96 (as regards a preliminary ruling given by the advocate general of the ECJ earlier this year).


Accounts and reports

The Taskforce on Climate-related Financial Disclosures (TCFD) has launched a public consultation on two documents: its ‘Proposed guidance on climate-related metrics, targets and transition plans’, and the associated ‘Measuring portfolio alignment: Technical supplement’. The proposed guidance is intended to provide general guidance for organisations seeking to establish relevant metrics, targets and transition plans around their climate-related risks and opportunities. The consultation closes on 7 July 2021 and the TCFD will take the consultation responses into consideration when releasing final guidance in autumn 2021. See: LNB News 08/06/2021 52.


 

Information Law & TMT

Data protection

The Competitions and Markets Authority (CMA) has announced its investigating of Facebook for potential abuse within social media or the digital advertising market, through the collection and use of advertising data. The investigation intends to look into whether Facebook has gained an unfair advantage over competitors in providing services for online classified ads and online dating via the way they gather and use certain data. The European Commission has also launched its own investigation into Facebook’s data use and the CMA will seek to work with the European Commission. See: LNB News 04/06/2021 81.

The appeal in R (oao Open Rights Group and The3Million) v Secretary of State [2021] All ER (D) 01 (Jun) was a challenge to the lawfulness of the Immigration Exemption contained within paragraph 4 of Schedule 2 of the Data Protection Act 2018 (DPA 2018). The Immigration Exemption allowed important data protection rights to be restricted by data controllers if it was said compliance with the rights in question would prejudice the maintenance of effective immigration control. This broad Immigration Exemption could be applied not only by public bodies but also private entities such as banks and landlords. The Court of Appeal allowed the appeal, ruling unanimously that the Immigration Exemption contained inadequate safeguards and was incompatible with Article 23 of the General Data Protection Regulation (EU GDPR). A hearing to determine the appropriate remedy will take place later this summer. This ruling is likely to strengthen the data rights of individuals subject to immigration control in the UK. Written by Waleed Sheikh, an associate solicitor at Leigh Day.See News Analysis: Court of Appeal rules Immigration Exemption lacks appropriate legal safeguards (R (oao Open Rights Group and The3Million) v Secretary of State).

The European Commission has announced an initiative to revise the 2014 eIDAS Regulation on electronic transactions, extending it to the private sector and promoting trusted identities for all Europeans. The EU digital ID scheme (EUid) for online transactions across Europe aims to give people greater control over their personal data and privacy and make it safer and easier to use online services anywhere in Europe. The commission is seeking views to feed into the legislative debate. The consultation will close on 2 August 2021. See: LNB News 07/06/2021 82.

The European Commission has opened a consultation seeking views from Member States’ public authorities, academic and research institutions, business associations, industrial clusters, companies, consumer organisations, NGOs, trade unions and citizens. The Commission hopes to gather input on measures to create a fair data economy by establishing better control and conditions for data sharing for citizens and businesses. The consultation will run until 3 September 2021. See: LNB News 03/06/2021 40.


 

TMT

Advertising, marketing and sponsorship

The Advertising Standards Authority (ASA) has launched a call for evidence on racial and ethnic stereotyping in advertising. The call for evidence seeks to establish whether, and, if so, to what extent, racial and ethnic stereotypes, when featured in ads, may contribute to real world harms—for example, unequal outcomes for different racial and ethnic groups. ASA welcomes responses from all members of the public. The deadline for responses is 30 June 2021. See: LNB News 08/06/2021 102.


Internet

The Competition and Markets Authority (CMA) has published the summary of responses to the consultation on its paper on algorithms, competition and consumer harm. Most of the 35 respondents agreed that the CMA has identified the correct harms to focus on in this consultation, but highlighted certain nuances, the need for legal analysis, empirical evidence and a proportionate approach for any investigation into the harms outlined. Respondents also suggested further harms that were missing from the scope of the paper, such as harms from firms’ use of data, economic harms arising from the sharing of consumer data, and potential harms of algorithms to democracy. See: LNB News 07/06/2021 45.


New techonology

Members of the European Parliament (MEPs) have debated the proposed regulatory framework for Artificial Intelligence (AI) with the European Commission Vice President, Margrethe Verger. MEPs sought to ensure sufficient protection of citizens' rights while encouraging the development of a Digital Single Market. See: LNB News 03/06/2021 7.

The European Commission has published the preliminary results of its competition sector inquiry into markets for consumer Internet of Things (IoT) related products and services in the EU. The IoT sector inquiry was launched on 16 July 2020 as part of the Commission's digital strategy. Following the publication of its preliminary report, it will now be subject to a public consultation until 1 September 2020. The Commission hopes to publish its final report on the subject during the first half of 2022. See: LNB News 09/06/2021 82.


Employment

HM Treasury (HMT) has said its Plan for Jobs is working with 1.3 million employees moving off furlough in March 2021 and April 2021. Figures show that 2.8 million individuals have benefitted from the Self-Employment Income Support Scheme. The Kickstart scheme is also creating thousands of new jobs for young individuals and ‘a range of business grants and loans have provided a bridge so that businesses can make it through the pandemic.’ HMT has also said the furlough scheme will continue until the end of September 2021, to provide support beyond the end of the coronavirus roadmap. See: LNB News 04/06/2021 16.


Corporate governance

The International Regulatory Strategy Group (IRSG) has published a report on how policy-makers, companies and financial markets participants can work together to drive more socially sustainable investment, noting that the ‘S’ in ‘ESG’ (environmental, social and governance) can be more difficult for investors to define and quantify, with a lack of consistency and comparability in approaches impeding the drive towards more sustainable investments. See: LNB News 07/06/2021 72


Equality of terms.

Article 157 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as having direct effect in proceedings between individuals claiming a failure to observe the principle of equal pay for male and female workers for ‘work of equal value’. Furthermore, Article 157 TFEU includes within its scope situations where the pay conditions of workers of different sex performing equal work or work of equal value can be attributed to a single source, with the effect that the pay of those workers can be compared on the basis of that article, even if the workers perform their work in different establishments, according to the Court of Justice of the European Union (CJEU). See News Analysis: Article 157 TFEU has direct effect in equal pay claims for work of equal value (K and others v Tesco Stores Ltd).


Policies, handbooks and other documents

The Advisory Conciliation and Arbitration Service (Acas) has issued a statement on the subject of fire and rehire practices, which contains views from a range of participants in relation to their experiences on the use of fire and rehire. The Department for Business, Energy and Industrial Strategy (BEIS) asked Acas to carry out an evidence gathering exercise in order to learn more about the use of fire and rehire practices. During the exercise, Acas engaged with various stakeholders, including: employer bodies, trade unions, professional bodies and networks with advisory contact with employers, covering employment lawyers, accountants, HR and payroll services, academics and Acas senior advisers. See: LNB News 08/06/2021 101.


Practice, procedure and settlement

The issue in Alta Trading UK Ltd (formerly known as Arcadia Petroleum Ltd) v Bosworth  [2021] EWCA Civ 687 was whether two former directors were in a relationship of subordination such that the employee protection provisions in Articles 18–20 of the Lugano Convention applied and the claims against them should have been brought in Switzerland, where the directors were domiciled. The Court of Appeal confirmed the test to be applied was whether the directors had a non-negligible ability to influence the putative employer’s business and the performance of their own duties. The reasoning is likely to impact on the post-Brexit employment protection provisions and the decision may contribute to the debate on where the boundaries of protection lie in domestic employment status cases. Written by Edward Kemp, barrister at Littleton Chambers. See News Analysis: Court of Appeal confirms the boundaries of protection for employment under the Lugano Convention (Alta Trading UK v Bosworth).


Status and worker categories

In the recent landmark case of Uber v Aslam, the Supreme Court found that drivers working for Uber London Ltd were workers. In this analysis, Jason Galbraith-Marten QC and Chris Milsom of Cloisters examine the reasons for the Court’s decision and its potential future impact. See News Analysis: The consequences of the Supreme Court decision in Uber.

 

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