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In this issue:
Risk & Compliance
Information Law & TMT
Additional news—daily and weekly news alerts
Dates for your diary
Upcoming virtual events
LexTalk®In-house: a Lexis®PSL community
The Information Commissioner’s Office (ICO) has published detailed guidance on the right of access. The guidance aims to help organisations deal with subject access requests effectively and efficiently. The content of the guidance has been informed by a public consultation, which called on the ICO to provide ‘additional content and examples’ and ‘more support and clarification on some aspects of the law’. See: LNB News 21/10/2020 57.
The European Data Protection Board (EDPB) has adopted a final version of the Guidelines on Data Protection by Design & Default. The guidelines focus on the obligation of data protection by design and by default in Article 25 of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR), and contain guidance on how to effectively implement the data protection principles in Article 5 of the GDPR, integrating comments and feedback received during the public consultation. See: LNB News 21/10/2020 97.
The ICO has fined British Airways (BA) £20m for breaching data protection law which affected approximately 429,612 customers and staff. An ICO investigation found that BA failed to protect the personal and financial details of its customers and staff as it processed a significant amount of personal data without implementing the necessary security measures, and was subsequently subject to a cyberattack during 2018 which remained undetected for over two months. The ICO stated that BA should have identified weaknesses in its security system and should have resolved them with the available security measures. The £20m fine is a notable step down from the £183.39m fine the ICO initially intended to impose on BA. See: LNB News 16/10/2020 36 and News Analysis: BA’s long-awaited UK data-breach fine puts spotlight on security of remote-access networks.
Financial crime and sanctions
Law360, London: The EU will launch a new sanctions regime targeted at individuals suspected of human rights abuses that will mirror the US Magnitsky Act, the EU Commission announced 19 October 2020. See News Analysis: EU sets out Magnitsky Act sanctions regime against human rights abuses.
HMRC’s 2015–20 business plan pledged to increase the number of criminal investigations and prosecutions into serious and complex tax crime, focusing particularly on wealthy individuals and corporates. The stated aim was to increase prosecutions in this area to 100 a year by 2020. Key to this strategy was the implementation of the corporate criminal offence (CCO) of failure to prevent the facilitation of tax evasion, which came into force on 30 September 2017. David Sleight, partner at Kingsley Napley, examines the possible reasons for the current lack of CCO prosecutions. See News Analysis: Three years on and still no prosecutions for HMRC’s corporate criminal offence.
The European Union Agency for Cybersecurity (ENISA) has published its 8th annual ENISA Threat Landscape (ETL) 2020 report amid the coronavirus (COVID-19) pandemic. The report outlines and assesses the top cyber threats between January 2019 and April 2020 and highlights the major change from the 2018 threat landscape following the transformation of the digital environment due to coronavirus. See: LNB News 20/10/2020 87.
The Financial Stability Board (FSB) has published its final report on ‘Effective practices for cyber incident response and recovery’ (CIRR). See: LNB News 19/10/2020 89.
Brexit and beyond
The EU has signalled its intention to engage ‘intensively’, ‘constructively’ and ‘in a spirit of compromise’ towards breaking the impasse in the future UK-EU relationship negotiations during the 19–23 October European Parliament plenary session in Brussels. With ‘no time to lose’, the EU leaders highlighted the priority focus in the closing stages of the transition period—including reaching an agreement on the future UK-EU relationship and ensuring the Withdrawal Agreement is ‘fully operational’ as of 1 January 2021. With UK and EU positions ‘still far apart’ on level playing field, fisheries and governance, hard work is required to ‘test whether it is possible to find common ground’. A statement from the Prime Minister confirmed that the EU negotiators would be invited to London to resume a final phase of intensified talks based on agreed joint principles (beginning 22–25 October 2020), to see if it is possible to bridge the significant gaps on the most sensitive issues and produce an agreed legal text. See: LNB News 21/10/2020 94.
With agreement on the future UK-EU relationship in doubt following the conclusion of the October European Council, Prime Minister Boris Johnson and Chancellor of the Duchy of Lancaster, Michael Gove, have called on business leaders ‘to step up their efforts to get ready’ for inevitable changes taking effect at the end of the transition period. The ‘call to action’ comes as the government launches a fresh information campaign aiming to prepare business leaders for what they refer to as ‘Australia-style’ arrangements at the end of the Brexit transition period on 31 December 2020. The campaign ‘Time is running out’, aims to spread awareness of ‘guaranteed changes’ taking place when the transitional arrangements under the Withdrawal Agreement come to an end and new arrangements come into effect on 1 January 2021. Meanwhile, HM Revenue & Customs (HMRC) has written to VAT-registered businesses to remind them of actions required to prepare for the end of the transition period and beyond. See: LNB News 19/10/2020 98.
The Department for International Trade (DIT) has published updated guidance to help EU businesses prepare for the end of the transition period. See: LNB News 21/10/2020 4.
The DIT has also reported that the new Board of Trade held its first meeting to agree principles and future programme of work on 19 October 2020. The Board of Trade will advise the government and DIT on its trade strategy, provide intellectual leadership on trade policy, and help Britain make the case for free and fair trade across the world. See: LNB News 19/10/2020 82.
HMRC has published revised guidance on importing and exporting goods between Great Britain and the EU to help stakeholders prepare for the end of the transition period. See: LNB News 16/10/2020 87.
The Department for Business, Energy and Industrial Strategy (BEIS) has announced that it will hold a series of free webinars in October 2020 and November 2020 on actions businesses can take to ensure they are ready for 1 January 2021, to help stakeholders prepare for the end of the transition period and beyond. See: LNB News 15/10/2020 48.
Matt Townsend, partner and global co-head of Allen & Overy’s International Trade and Regulatory Group, and Jonathan Benson, senior associate, analyse the UK’s changing ability to negotiate free trade agreements (FTAs), the UK’s progress in securing the continuity of its trading relationships with third States and the current state of play in respect of the UK’s efforts to secure freestanding FTAs with the US, Australia and New Zealand, as well as the UK’s ‘pivot to the Asia Pacific region’. See News Analysis: Back to the future? The UK’s free trade agreements after Brexit.
The case of TKC London v Allianz Insurance concerned a claim under a policy of all-risks business interruption (BI) insurance for losses allegedly suffered by a café as a result of the nationwide coronavirus lockdown orders in force between March 2020 and July 2020. An application by the insurer for summary judgment was successful and the claim was dismissed. The judgment emphasises the importance of legal certainty in the courts’ response to the pandemic, and clarifies that conventional BI policies without disease clauses or suitable denial of access extensions are unlikely to respond to coronavirus-related losses. Written by Keir Howie, barrister at 7KBW. See News Analysis: Summary judgment given in coronavirus (COVID-19) business interruption insurance claim (TKC London v Allianz Insurance).
Law360: As the coronavirus pandemic has affected markets around the world and devastated many businesses, companies of all stripes are increasingly seeking out trade credit insurance, a form of insurance coverage that protects a business against the risk of its customers failing to pay for shipments. See News Analysis: A policyholder’s guide to trade credit insurance.
The UK government has introduced the Financial Services Bill in Parliament. The Bill is intended to ensure the UK’s regulatory framework continues to function effectively for the UK after leaving the EU. Among other things, the Bill includes provisions to amend the Benchmarks Regulation, which is intended to help manage and direct an orderly wind-down of critical benchmarks such as LIBOR, amendments to the market abuse regime and increasing beneficial ownership transparency for trusts. See: LNB News 21/10/2020 98.
Accounts and reports
The Financial Reporting Council (FRC) has published:
● two guidance documents which cover some critical focus areas for companies as they approach 2020 year-ends, reflecting on the findings of previous work by the FRC Lab and considering current practice and how to develop investor information moving forward—see: LNB News 15/10/2020 50
● its Annual Review of Corporate Reporting for 2019–20, which sets out the FRC’s top ten areas where improvements to reporting quality are required, together with other disclosure improvements that they expect to see next year—see: LNB News 21/10/2020 55
● three sets of amendments to the UK and Ireland accounting and reporting standards, namely FRS 101, FRS 102 and FRS 105 and FRS 104—see: LNB News 19/10/2020 88
M&A—material adverse effect
In Travelport Ltd and others v Wex Inc; Olding and others v Wex Inc  EWHC 2670 (Comm), Travelport and 12 others sought declarations and specific performance to the effect that Wex was contractually obliged to complete the purchase of two groups of companies engaged in the business of facilitating payments in the travel industry. The agreed price for the purchase was approximately $US 1.77bn. The contract included a material adverse effects (MAE) clause. Wex sought to invoke this clause in order to avoid completion, relying on the effects of the coronavirus pandemic. Written by Charles Joseph, barrister at Tanfield Chambers. See News Analysis: Material adverse effect clause—construction and burden of proof (Travelport Ltd v Wex Inc).
Equity capital markets
The City of London Law Society (CLLS) has published a paper prepared by a joint working party of the company law committees of the CLLS and the Law Society of England and Wales in response to consultation paper CP20/3: Proposals to enhance climate-related disclosures by listed issuers and clarification of existing disclosure obligations issued by the Financial Conduct Authority (FCA). See: LNB News 16/10/2020 32.
The London Stock Exchange has issued N16/20 Dividend Procedure Timetable Market Notice amid the coronavirus pandemic. The notice withdraws the temporary measures set out in Stock Exchange Notice N07/20 which set out guidance in relation to the temporary measures for payment dates under the Dividend Procedure Timetable, with effect from 2 November 2020. After this date, issuers announcing cash dividends should return to the 30 business day period from record date, in which the dividend should be paid. See: LNB News 16/10/2020 79.
The government has published fresh webpages for UK businesses collating existing stakeholder and sectoral guidance on preparation for the end of the transition period. Subjects covered include broadcasting, telecoms, .eu domain names, eCommerce Directive, data protection and the Network and Information Systems Regulations 2018 (NIS Regulations), SI 2018/506, among other things. The majority of the guidance within the new webpage is not new but has been collated by sector for ease of reference and bookmarking. Some of the guidance may change as the transition period progresses, so stakeholders are advised to monitor the pages for updates. See: LNB News 16/10/2020 37.
How will the end of the transition period impact tech companies’ access to overseas talent? Helen Smith of Helen Smith Immigration Limited examines the key aspects that are changing in recruitment of non-British/Irish nationals, the specific issues companies should be contemplating in relation to European Economic Area (EEA) national employees and prospective employees and whether the new system will bring opportunities. Smith also considers what companies should be doing now to plan for future recruitment of non-British or Irish staff after 1 January 2021 and whether there is anything else to be aware of in relation to the new system. See News Analysis: Immigration and access to talent for tech and telecoms companies after IP completion day.
Advertising, marketing and sponsorship
The Competition and Markets Authority (CMA) has confirmed that Instagram will take action to prevent hidden advertising on its app and website following a CMA investigation. Facebook Ireland Ltd, which is responsible for operating Instagram in the UK, has confirmed a package of changes to tackle the hidden advertising which will make it more difficult for people to post an advert on Instagram without labelling it as an advert. Under consumer protection law, incentivised posts require clear labelling to ensure that people are not misled. To comply with consumer protection law, Instagram will prompt users to confirm whether they have been incentivised to promote a product or service, extend its paid partnership to all users and use technology and algorithms to identify when users might not have disclosed their post as an advert. The CMA will be provided with regular updates regarding Instagram’s progress. See: LNB News 16/10/2020 12.
In The Racing Partnership Ltd and others v Sports Information Services Ltd  EWCA Civ 1300, the Court of Appeal confirmed by majority that knowledge of unlawfulness is not required to establish the tort of unlawful means conspiracy and placed practical limits on what might be considered truly confidential information in the future, emphasising the need for careful pleadings. The judicial discussions of the role of economic torts where rights are otherwise governed by contract provide some significant food for thought, with competing views expressed. Written by Lauren Godfrey, barrister, at Hardwicke Chambers. See News Analysis: Confidential information—knowledge of unlawfulness not required for unlawful means conspiracy (The Racing Partnership Ltd v Sports Information Services Ltd).
In Ryan v South West Ambulance Services NHS Trust (UKEAT/0213/19/VP) the EAT held that in a claim of indirect discrimination, the group, and individual, disadvantage that are pleaded must be the same, and must be clearly articulated, because a failure to do so is likely to lead to many problems in the ensuing litigation. See News Analysis: Indirect discrimination: group and individual disadvantage must be the same (Ryan v South West Ambulance Services NHS Trust).
The Equal Pay (Information and Claims) Bill, a Private Members Bill sponsored by the Labour Co-op MP, Stella Creasy, would provide for a right for employees to obtain information relating to the pay of a comparator; reform remedies and time limits relating to equal pay; provide a right to equal pay where a single source can rectify unequal pay; amend the statutory statement of particulars to include equal pay; and provide for requirements on certain employers to publish information about the differences in pay between male and female employees and between employees of different ethnic origins. The first reading took place on 20 October 2020. The second reading is set to take place on 13 November 2020. See: LNB News 21/10/2020 1.
Pay, benefits and tax
The government has published its response to the consultation on simpler annual benefit statements for workplace pensions and says it will consult later this year on a mandatory approach to two-page simpler statement templates for defined contribution schemes used for automatic enrolment. See: LNB News 19/10/2020 21.
Following discussions with stakeholder groups, HMRC has issued an update on off-payroll working and the interpretation of section 61O of the Income Tax (Earnings and Pensions) Act 2003, which sets out the conditions that must be met for the regime to apply where the intermediary in question is a company. Concerns have been raised that amendments introduced in the Finance Act 2020 could capture a wider range of companies providing a worker’s services to a third party, such as umbrella companies, employers seconding employees and agencies providing workers in circumstances where the other conditions are met. This interpretation would require a client to apply the off-payroll IR35 rules to those engagements. HMRC has confirmed this is not the intention of the legislation. See: LNB News 21/10/2020 84.
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.
2 November 2020
Employment law issues for in-house lawyers
18 November 2020
Autonomous vehicles (2020)
30 November 2020
Commercial law—end of year round-up 2020
8 December 2020
14 December 2020
The European Electronic Communication Code (2020)
31 December 2020
Dealing with conflicts of interest within your organisation
Recent developments in commercial contracts (2020)
Cloud computing (2020)
Drones law (2020)
Influencers and intellectual property (2020)
(Brief) The Copyright Directive (2020)
Please follow us on Twitter at @inhouse_leaders. You can also keep updated by reading our blog, including our monthly video news. If you need an overview of the materials in the in-house module, see: In-house—introduction to our materials.
Virtual networking and forum events
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11 November 2020Modern slaveryRegister now to attend
Modern slavery is a topic of vital global importance. A panel discussion on this topic will be followed by an interactive Q&A session. As this is Armistice Day, we will end the session with a minute’s silence.
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