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US Quarterly Newsletter - July


United States

Welcome to our latest newsletter and Happy Fourth of July! We've had a busy last quarter...

Welcome to our newsletter and Happy Fourth of July!  We've had a busy last quarter and are pleased to announce that we have re-branded as Fieldfisher and moved to impressive new offices at Riverbank House in London overlooking London Bridge.  We are also pleased to inform you that we have made a new hire in our Palo Alto office: Mark Webber joins us from Osborne Clarke as a Technology Partner and will be permanently based in California.
We hope that you will find the content of this newsletter useful and encourage you to contact us should you have any questions on the topics covered in this newsletter or indeed if we can help with any other matter.

Intellectual Property

CJEU Rules: Internet Browsing is not Infringing 
After five years of litigation between the parties, the Court of Justice of the European Union (the "CJEU") has now handed down its ruling on the liability for browsing and caching in Case C-360/13 Public Relations Consultants Association Limited v Newspaper Licensing Agency Limited and Ors.  Sheena Sheikh Brown discusses the ruling and provides some interesting commentary.

New Intellectual Property Act 2014 for the UK 
After months of parliamentary debate and scrutiny, on May 14 2014, the Intellectual Property Bill received Royal Assent and became the Intellectual Property Act 2014 (the "Act"). It will now be necessary to pass Secondary legislation to implement the measures contained in the Act, some of which are expected to come into force from October 2014, with all measures aimed at being implemented by late 2015.  Rebecca Pakenham-Walsh discusses the Act and highlights some of its main provisions.

Dot London
ICANN’s new gTLD ("generic top-level domain")  program is now well under way and registrations are being accepted for domains in TLDs as diverse as .kitchen, .bargains and .ninja. .london launched on April 29 2014 hot on the heels of a number of other city domains such as .tokyo and .berlin.  Lucy Nunn discusses the impact of these new gTLDs and what (if anything) we need to do about them.

Privacy and Information Law

EU Cookies Alive and Well
It’s hard to believe that it has been a few years since the updated cookie “consent” rules came into effect across Europe. At that time, it was pretty much the hot topic in the data privacy world as we all grappled with the rules’ implications and how to implement appropriate compliance mechanisms.  However in recent times, one would be forgiven for almost forgetting those days. Therefore, it’s nice to hear that there have been enough recent cookie developments in various EU member states to remind us that it is still an important compliance issue for any organisation that uses cookies and related tracking technologies. Brian Davidson provides a run-down of what’s been happening in Europe.

ECJ Affirms Individuals’ Right to be Forgotten
Phil Lee provides a background to the European Court of Justice ruling in the case of Google v the Spanish DPA, which was finally handed down on May 13 2014 and has significant implications for all online businesses.  Phil discusses the issues considered and also addresses the practical implications for online businesses.

Anonymisation is great, but don’t undervalue pseudonymisation
At the end of April 2014, the Article 29 Working Party published its Opinion 05/2014 on Anonymisation Techniques.  The opinion describes (in quite some technical detail) the different anonymisation techniques available to data controllers, their relative values, and makes some good practice suggestions – noting that “Once a dataset is truly anonymised and individuals are no longer identifiable, European data protection law no longer applies“.  Phil Lee explains the difference between anonymisation and pseudonymisation and comments on the value of pseudonymisation.

Creating a Successful Data Retention Policy
With the excitement generated by the recent news that the European Court of Justice has, in effect, struck down the EU’s Data Retention Directive, Phil Lee thought it would be as a good a time as any to re-visit the topic of data retention generally.  Phil provides an overview of data retention and outlines some key considerations.

Beware: Europe’s Take on the Notification of Personal Data Breaches to Individuals 
Article 29 Working Party has recently issued an Opinion on Personal Data Breach Notification (the "Opinion").  The Opinion focuses on the interpretation of the criteria under which individuals should be notified about the breaches that affect their personal data.   Nuria Pastor provides us with the background and analyses the take aways from the Opinion.


Update: New Consumer Rights Regime in Europe – now in force 
The EU’s Consumer Rights Directive ("CRD") applies to all businesses selling products, services and digital content to European consumers.  The CRD represents a major change in Europe’s consumer regulatory landscape, bringing changes that carry a significant compliance impact, especially for online businesses.  As of June 13 2014, the new rules have been implemented into national law across all key European markets.   David Lewis provides us with an overview of the key changes and addresses some of the common challenges digital businesses face when assessing how to balance user experience with robust compliance under the new framework.

Ofcom Announces Strategic Direction for Spectrum Management 
Ofcom, which has responsibility for management of the radio spectrum in the United Kingdom, announced its strategic direction and priorities for the spectrum over the next 10 years.  The use of the spectrum is critical for both business and consumers, and is fundamental to television and radio broadcasting, mobile communications (voice data and mobile internet), emergency services, smart-meters etc.  Demand for spectrum and its use continues to grow, and therefore innovation is needed to make the most efficient use possible of the parts of the spectrum available for existing and likely new  applications.  Chris Eastham and Paul Barton discuss the six priorities identified from the strategy.

UK Games Tax Relief Approved by the EC
The Games Tax Relief, announced by George Osborne in the 2012 Autumn Statement, has been approved by the European Commission as compliant with EU rules on state aid.  It is hoped that the new tax relief will entice foreign games producers to the UK, as they will also be entitled to the relief if hiring British developers.  Edward Bennett provides us with the relevant background.

It is well established that agreeing fixed or minimum prices with third party resellers is unlawful (because it blunts intra-brand competition amongst resellers). Recommending resale prices is, on the other hand, generally accepted to be perfectly lawful.  Under the EU Vertical Agreements Block Exemption Regulation, RRPs are permitted unless underpinned by pressure or incentive tactics (considered to have the effect of turning a recommendation into a fix).  John Cassels and Jessica Burns discuss the guidance issued by the  German Federal Cartel Office which sets out examples of pressures and incentives that will almost certainly tip lawful RRP into unlawful RPM.

Sugar Levels
In late May 2014, the European Commission decided to close its investigation into some of the EU's major sugar producers, including the German suppliers Südzucker and Nordzucker.   The Commission had carried out dawn raids on the basis of a suspicion that the sugar companies were involved in a price fixing cartel.  On the same day, Germany's Competition Authority announced that it was imposing fines of €280 million on three major German sugar producers, including Südzucker and Nordzucker.  John Cassels provides commentary that this is an apt example which highlights the complex relationship between EU anti-trust rules, Member States' national anti-trust rules, the EU Commission as an anti-trust enforcer, and NCAs as anti-trust enforcers.

Run, Competition Law, Run! 
At the end of April 2014, the German competition law regulator, the 'Bundeskartellamt', set out its preliminary view that the way sports footwear manufacturer Asics distributed its products to consumers restricted competition.  Asics was reported to be using a selective distribution system - it is alleged that Asics banned their resellers from using online marketplaces, eBay and Amazon to sell Asics shoes.  John Cassels and Daniel Geey discuss the case in more detail.

Corporate and Finance
Will New Transparency Rules Spell the End of Corporate Membership of LLPs? 
Proposals to increase transparency and trust in the UK business environment are taking shape and are set to impact on LLPs following publication of the Government's response to its July 2013 consultation.  Nicholas Thompsell and Guy Burman discuss the proposals and implications in detail.

Market reCap May 2014  
Jonathan Brooks and Fieldfisher's Equity Capital Markets team condense the most significant legal and regulatory changes from the last few months into short, concentrated articles that cover the key points.  In this reCap, the team discuss the new exemption from stamp duty and stamp duty reserve tax on growth shares that took effect on 28 April 2014 in the UK; amendments to the UK Listing Rules; and the Association of British Insurers best-practice recommendations in relation to lock-up agreements to name a few.


Convictions for tax fraud up 143% in the UK 
From a combination of Parliamentary Answers and Freedom of Information Act requests, George Gillham provides the figures that reveal the extent of HMRC’s criminal investigations activity, and the extent of its success (or failure) for 2010/11 to 2013/14 and George offers some interesting commentary. 

One Minute on Life, the Universe and Employee Ownership with the Tax Journal 
Tax Journal is the leading tax publication for the UK corporate and business community: it publicised employee ownership to its readers in a recent interview with our very own tax Partner, Graeme Nuttall.


Criminal Record Checks and the Right to Private and Family Life 
On June 18 2014, the Supreme Court determined that the UK’s current process for criminal records checks is incompatible with the right to respect for their private and family life.  Other than in the case of extremely serious criminal offences, most convictions are ‘spent’ after a specified period of time.  Spent convictions do not need to be disclosed to employers.  However, in cases where the individual is seeking to work with children or other at risk groups, then employers are entitled to take account of spent convictions and there is also a disclosure obligation on the individual.  Angharad Schell discusses the recent case and its implications.

Members of Limited Liability Partnerships Protected by Whistleblower Legislation 
In Clyde & Co. LLP v Bates van Winklehof the UK Supreme Court held that members of limited liability partnerships (LLP) are workers and hence entitled to protection under whistleblowing legislation.  Neil Johnston discusses the case and its implications.

EU Businesses Faced with Costly Holiday Pay Bill - Retailers, Restaurants and Others Take Note!
The European Court of Justice ("ECJ") has confirmed that commission should be included as a component in the calculation of a worker’s holiday pay (in its judgment in Z.J.R. Lock v. British Gas Trading Limited).  The ruling means that any worker who receives commission in addition to their basic salary will be entitled to have this reflected in their holiday pay when they take annual leave.  Chris Wormald and Nicholas Thorpe comment that businesses with operations in the European Union will be affected by this important judgement and that franchisors for whom this is an issue may well wish to alert their franchisees to prepare for the potential liabilities they are likely to face.

For more information on doing business in Europe, please contact:

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