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US eBulletin: Autumn 2018

05 November 2018

Welcome to the autumn edition of our US eBulletin, where we take a look at trade secrets; secondary ticketing; employment rights; data protection; the EU copyright directive and loot boxes.

Trade secrets on the agenda

Despite our future departure from the EU, the UK has implemented the EU Trade Secrets Directive 2016/943 by introducing The Trade Secrets (Enforcement, etc.) Regulations 2018 on 9 June 2018.

Among other things, the Directive introduced a definition of ‘infringing goods’ whose design, characteristics, functioning, production process, or marketing, significantly benefits from trade secrets unlawfully acquired, used or disclosed.

As this will now apply across the EU, the Directive should make it easier to take action across EU borders to prevent sales of such goods, and opens the possibility for one EU court granting EU-wide injunctive relief.

Many questions do arise, however, about how to interpret the definition of ‘infringing goods.’

You can read more here.

CMA clamps down on secondary ticket reseller

The Competition and Markets Authority (CMA) in the UK announced on 31 August 2018 that it will bring court proceedings against secondary ticket reseller, Viagogo, for allegedly breaching UK consumer law.

Specifically, the CMA is concerned that Viagogo is not giving customers adequate information about their purchases, including details of who they are buying tickets from and accurate data regarding ticket availability.

It may be of interest to note that the practices highlighted by the CMA are in fact often used by companies in the US and this investigation should serve as a reminder to companies overseas that the consumer protection regime in the UK is very strict, often restricting practices which may be permitted in other jurisdictions.

Companies looking to market their products and services in the UK can easily be caught out by the tighter regulations in the UK and in Europe more generally.

If you would like any advice on how consumer rights laws in the UK may affect your business, please contact our Commercial Contracts team here.

Employment rights for the self employed

UK employment law provides rights for individuals who cannot properly be categorised as employees.

The traditional split in terms of employment rights is between those who are employed and those who are self-employed working for their own business. This distinction characterises the UK tax system for employees because employees are subject to payroll deduction and the self-employed are not.

However, a third category of individual now exists, the worker, benefiting from some employment law protection.

You can read more here.

First ICO enforcement notice under GDPR and the ePrivacy Regulation

Canadian company, AggregateIQ Data Services (“AIQ”), is the first to be issued with an enforcement notice from the Information Commissioner’s Office (“ICO”) under the General Data Protection Regulation (“GDPR”), requiring it to “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.”

The ICO established that AIQ had unauthorised access to personal data of UK voters provided by the Vote Leave (Brexit) campaign and breached Articles 5, 6 and 14 of the GDPR.

The ICO then served, under section 153(1) of the Act, a variation to the Enforcement Notice which requires AIQ also to erase the data (subject to certain conditions).

AIQ initially attempted to use jurisdiction to avoid engaging with the ICO’s investigation but has since complied with their enquiries.

In other news, reports suggest that there is still a divergence of opinions between Member States on key issues in the ePrivacy Regulation, which focuses on cookie consent, and electronic marketing issues.

Further talks are required to reach an agreement on the text, due last May and now expected in 2019.

If you would like further information on this topic, you can contact our Data Protection team here.

Digital Business Lawyer – loot boxes

One of our Games specialists, Ben McMeechan, shares his views on the legal issues surrounding loot boxes in the games industry in an article for the Digital Business Lawyer.

You can read the article in full here.

Shireen Peermohamed on EU copyright directive

Shireen Peermohamed, Intellectual Property partner, shares her views on the changes to the EU copyright directive in articles for a number of publications.

You can read her comments here.

Private capital expertise

We have a thriving Private Capital group specialising in a wide range of services for wealthy people. This includes tax and estate planning and a significant part of this relates to US-connected individuals.

Many of our clients are US persons living in the UK, investing in the UK or spending time there for work or other reasons. Depending on the extent of their connections, this can raise complicated tax and succession planning issues. Many of our US-connected clients require dual UK/US wills which work effectively in both countries, as well as guidance on tax structuring and compliance to ensure that double tax is avoided.

Particular issues that often crop up in this context are the risk of UK/US couples suffering estate or inheritance tax on the first death, as well as tax issues around US revocable trusts/living wills which raise questions around recognition and can cause significant problems in the UK.

We work with a number of partners in the US to achieve efficiency for our clients and all UK/US connected clients should seek specialist advice on this complicated area.

If you would like further information on this topic, you can contact our Private Capital team here.

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