Business Legal News from Blackadders Solicitors

As part of modern life, we can lose sight of how much we reveal about ourselves to the world (think social networking sites and store loyalty cards).  For businesses and other organisations that make use of personal information, managing the use of the information lawfully can be a real headache, particularly for those with an international dimension to their business and multiple regimes to adhere to.

The European Commission has issued proposals to strengthen and simplify the existing data protection laws that apply across the European Union.  The intention is to boost Europe’s digital economy by reviving consumer confidence in their online privacy rights.  Introduction of a ‘one-stop shop’ for data protection is proposed to achieve that outcome by replacing the current fragmented and differing systems in each country.

As well as giving consumers greater uniformity of protection, the proposals will save business an estimated €2.3 billion a year in administrative costs.  While business will certainly welcome a standard approach across the EU, there will also be a concern to ensure that the desire to boost consumer confidence in online privacy rights does not detract from the efficient use of personal information for legitimate purposes.

The key reforms proposed include:

• A uniform set of rules across the whole EU. Removing legal uncertainty and inconsistency across Member States, volumes of paperwork for businesses and overcoming a disincentive and cost to expanding businesses into new areas of the Single Market;
• Companies will deal with a single national Data Protection Authority (DPA) in the EU Member State where they have their principal place of business, the DPA’s decisions will be binding across the EU area;
• Serious breaches, such as theft or accidental release of data, should be reported to the DPA within 24 hours (if feasible) and to individuals without undue delay; and
• Individuals to give explicit consent to data processing or reuse and they will have greater rights in terms of transferring personal data between service providers and deleting data which is no longer required

However, these proposals are only as good as the enforcement they receive (if they become law). DPAs will have stronger investigative and sanctioning powers, including the ability to fine up to €1m or 20% of global turnover of the company for breaches.

For companies which operate branches outside the EU, but contract with individuals within the Single Market, or process their personal details outside the EU, it is proposed that Binding Corporate Rules are introduced to ensure uniformity of protection, regardless of organisations’ internal arrangements.  BCR will be approved by one DPA only and considerably simplify the process.   

As with any EC legislative proposal, it will be years rather than months before the proposals are consulted upon, amended, voted upon and implemented.  However, the proposal does provide some hope that the regulatory burden on businesses trading across Europe may be eased somewhat in the future.

We will keep you updated with data protection developments, in the meantime if you would like professional advice about any of these matters please contact us at 01382 229222.

We are delighted to be involved in ‘Law Week’ which runs from 6th March – 8th March. Organised by the Dundee & Angus Chamber of Commerce, ’Law Week’ is a suite of topical, one-hour, legal briefings.

Dates: Tuesday 6th March to Thursday 8th March 2012

Format: A series of one-hour topical law seminars

Times: The first session each day will commence at 8.30am and the last session will conclude at 4.30pm (6pm on Thursday 8th March)

Venue: Dundee & Angus Chamber of Commerce, City Quay, Dundee

Cost: FREE*
(*Any booking cancelled with less than three full working days’ notice will be subject to a cancellation fee of £10+ VAT)

Seminar programme:

• Absence Management: Curing your sickness headaches
• Capability: Default retirement age
• Fire Safety
• Health & Safety: How safe are your premises?
• Is there still no such thing as a free lunch?: The Bribery Act 2011
• Latest Developments in Discrimination Law: Key cases explained
• Successful Debt Recovery Strategies
• Survive & Thrive in 2012
• Twitter and Facebook: Threat or opportunity?

Click here for seminar descriptions and dates and times.

The format allows you to attend the sessions that are most important to you and because each seminar will run twice over the course of Law Week, you have double the chance to get to the seminars you want. Law Week will conclude with a Panel Session to give you the chance to ask questions on topics and issues not covered in the individual seminars.

Law Week is open to DACC members and non-members. Places will be offered on a first-come, first-served basis and if demand is high, may be limited to one person per organisation. So, don’t miss this unique opportunity to get all of your law questions answered in one place at one time.

Register here and make sure of your place.

The announcement of strike action by Dundee’s school teachers is bad news for working parents. Parents who cannot make suitable childcare arrangements will be forced to take a day off work. This will not be covered by the legislation which gives the right to time off (without pay) to deal with family emergencies. This means working parents will either have to take a day’s holiday (if they have any holiday entitlement remaining) or lose a day’s pay. A working parent who takes the day off to look after children when schools are closed due to strike action could risk disciplinary action if they do so without their employer’s consent.

David and Goliath had nothing on Football Association Premier League Ltd.  [Sky Sports]  v.  Mrs Murphy.  This has gone all the way to the highest Court in Europe thanks to a brave pub landlady from Portsmouth.   

So what is the outcome for licensees?  We will have to wait to be sure.  The European Court of Justice has decided that it is contrary to EU law to sell Premier League matches on a country-by-country basis and any prohibition on the use of foreign decoder cards cannot be justified on the basis of protecting intellectual property rights.  However, the issue is far from straightforward.  For a start, the ECJ’s judgment has still to be interpreted by the English High Court, which had referred the matter to the ECJ for guidance.  This is likely to take some time.

On the subject of copyright, whilst the court held that live football matches are not works that can enjoy copyright protection, component parts of the overall broadcast – such as theme tunes, graphics and highlights of previous games – are protected.  As such, these add-ons cannot be shown without the consent of the Premier League.  If these protected elements are present, it is certainly not safe for you to broadcast Premier League matches other than through subscriptions with Sky or ESPN. 

The general consensus is that the Premier League will ultimately seek to sell its rights on a pan-European basis and so many question whether pubs will see a reduction in prices going forward.  What is clear is that the ramifications of the decision are likely to extend well beyond the world of football – films and TV programmes are generally sold on a territorial basis and the consequences could be huge. 

On a commercial level, the questions you need to ask yourself at present are:–

1. Am I making money when I provide satellite sports? 

If the answer is “No”, as it often is, you need to then ask yourself:

1. Could I be carrying out other activities or taking any action to better boost the bottom line?

In many cases, the answer is “Yes”.

There are a number of ways to make your pub work better – service and product training for staff to make your premises friendly and welcoming, selling high quality products, refreshing the premises with a paint job, linking with other businesses in your locality to provide business synergy.

An example to boost your business may be to invite the wine or whisky merchant to carry out tastings in your place.  Or, if you have no kitchen, perhaps you could link with a non-licensed cafe or carry out premises and let their customers eat inside – they will soon become your customers and they will   almost certainly buy a drink or two.  We Scots are generally too polite not to!

If you would like to talk to our business boosting team here at Blackadders, please contact:

Janet Hood, our Accredited Licensing Specialist, at janet.hood@blackadders.co.uk or by phone on 0771 888 2837 or 01382 342270; or

Kirk Dailly, a member of our IP/Technology Group, at kirk.dailly@blackadders.co.uk or by phone on 01382 342453.

With effect from 1 September 2011, Companies House will reject company names on documents which contain minor variations or typographical errors.  The only exceptions are as follows:

1. “Co” may be used instead of “Company”;
2. “&” may be used instead of “and”
3. the word “THE” may be omitted, but only at the front of a company name; and
4. certain standard abbreviations, such as “Ltd”, “plc” and “LLP”, will continue to be accepted.

The objective of the policy is twofold – (a) to ensure that documents are entered on the correct company record and (b) to reduce the current level of rejected documents.  Logic would suggest that tightening the examination policy will not reduce the number of rejections, but perhaps Companies House is hoping that everyone reading this will be that little bit more careful in future.

Entering the correct company name on a form may seem like basic stuff, but avoidable errors do occur and they can be costly.  For example, we have seen clients make elementary errors in relation to dormant annual accounts which have resulted in avoidable fines being levied.

So, don’t be another victim of the costly typo.  If your company requires assistance in its dealings with Companies House, we would be happy to help. 

The UK government has introduced measures designed to enable more companies to raise equity finance without the burden of issuing a prospectus.

A prospectus is essentially a formal marketing document containing details of a proposed investment opportunity which is designed to allow investors to make an informed decision before parting with their hard earned cash.  Such a document is legally required before shares in a company can be offered to the public, unless one or more exemptions apply.

With effect from 31 July 2011, the scope of two exemptions has been extended as follows:

1. the number of persons to whom an offer of shares (or other “transferable securities”) may be made before a prospectus is required has been increased from 100 to 150; and
2. the aggregate size of the offer that may be made before a prospectus is required has been increased from €2.5m to €5m.

 The above changes, which derive from an EU directive, have been implemented in the UK 12 months ahead of schedule. 

Although any measures designed to help companies raise money have to be welcomed, many small businesses will no doubt feel that far more still has to be done in order to improve access to both equity and loan finance. 

Nevertheless, it is important that businesses are mindful of the possibility of raising equity finance as an alternative to collaring their relationship managers at the bank. 

As a corporate member of LINC Scotland (the national association for business angels in Scotland) and having advised numerous early-stage companies on funding rounds with an aggregate investment value of circa £5m over the past 2.5 years, no-one is better placed in the region to assist in this niche area. 

These Regulations, which came into force on 7 March 2011, make provision about tenancy deposit schemes for the purposes of Sections 120-122 of the Housing (Scotland) Act 2006.

The main objectives of the Regulations are:-

• To tackle the problem of unfairly withheld deposits;
• To ensure that deposits are safeguarded throughout the duration of the tenancy; and
• To ensure that deposits are returned quickly and fairly, particularly where there is a dispute over the return of the deposit, or a proportion of it, to tenant or landlord.

Such schemes require to be approved by the Scottish Ministers and will safeguard tenancy deposits. The Regulations set conditions which schemes must meet before they will be approved and establish the regulatory framework for the schemes.

The Regulations impose duties on landlords to pay a tenancy deposit to an approved scheme, to provide information to the tenant, and to ensure that a deposit is held by an approved scheme throughout a tenancy. The scheme administrator must be a fit and proper person and the Scottish Ministers are allowed to give financial assistance in connection with an approved scheme if they wish to do so. There are sanctions for any failures to comply with the duties imposed.

The establishment of a scheme to safeguard tenancy deposits supports the wider policy objective of raising standards of property management in the private rented sector. It compliments other policies such as national landlord registration, voluntary landlord accreditation and the Repairing Standard, which also aim to raise standards in the sector. To add to this, the Property Factors (Scotland) Bill has now also been approved by the Scottish Parliament and will be implemented by October 2012 or earlier.

Nicola McCafferty
Solicitor
Commercial Property

On 30 March 2011 the Ministry of Justice announced that the Bribery Act will come into force on 1 July 2011.  Implementation had been delayed to allow for the drawing up of guidance on ‘adequate procedures’: this guidance has now been published.  The business community has been given three months to digest the new information and ensure that procedures are up to scratch before 1 July.

The guidance outlines the principles underlying the Act and details the offences which have been created.  It also provides information on what measures businesses can take to ensure that they effectively guard against the dangers of corruption. Those with ‘adequate procedures’ in place will also have a defence to the offence of ‘failing to prevent bribery’, so the guidance is essential reading.  There is also a separate ‘quick start’ guide which is designed to be a more concise introduction to the new laws for those in small businesses.  

In his foreword to the guidance, the Justice Secretary Ken Clarke explains that combating the risks of bribery is “largely about common sense, not burdensome procedures”. The business community will learn whether or not the Act upholds this approach in the months to come.

Campbell Clark
Head of Corporate & Commercial