The DOJ’s recently updated guidance poses helpful questions for UK corporates evaluating the effectiveness of their internal compliance programmes.

By Stuart Alford QC, Erin Brown Jones, and Nathan H. Seltzer

It is well known that a corporate’s failure to prevent offences can be answered with a defence of “adequate procedures” in a case of bribery or “reasonable procedures” in a case of failure to prevent the facilitation of tax evasion. However, with no case law to aid comprehension of what “adequate” or “reasonable” mean, UK corporates are forced to seek answers elsewhere.

The UK government has issued guidance alongside both the Bribery Act 2010 and the Criminal Finances 2017, and these documents remain the principal source for interpreting those acts. However, UK companies looking to understand the wider expectations of law enforcement — particularly companies that operate in multiple jurisdictions — may find useful the US Department of Justice’s (DOJ’s) updated guidance “Evaluation of Corporate Compliance Programs” and recent comments from Assistant Attorney General Brian Benczkowski introducing the updated guidance, which replaces similar DOJ guidance issued in 2017.

By Gail Crawford and Ulrich Wuermeling

As the whole world now knows, the UK voted to leave the European Union (EU) in its historic referendum on 23rd June by a vote of 51.9 percent in favour of “leave” to 48.1 in favour of “remain”. This blog focusses on how that decision will impact both UK and global organisations’ compliance with data protection law.

The referendum does not start the exit process. To formally start the exit process, the UK has to serve notice under Article 50 of the Treaty on the European Union which triggers a period for negotiation of the terms of the UK’s exit; with exit taking effect once those negotiations have concluded, or after two years (if sooner), irrespective of what terms have (or have not) been agreed. The two year cut-off period can only be extended with unanimous consent from all EU member states.

By Ulrich Wuermeling, Gail Crawford and Jennifer Archie

Earlier this week, the European Commission announced that a “political” agreement has been reached on a new framework for data flows from the EU to the US. The announcement highlights a few changes from the old Safe Harbor regime, such as more direct and active oversight by US regulators, more stringent privacy protections, and establishing an ombudsman at the State Department for EU citizens who wish to complain about data protection matters. However, as a legal and compliance matter, US companies who previously relied upon Safe Harbor to transfer EU data take significant compliance risk if they do nothing in anticipation of newly branded EU-US Privacy Shield framework being formally approved, given it is not yet documented and will be subject to review by the EU data protection supervisory authorities in the so-called Article 29 Working Party as well as representatives of the Member States and the European Parliament.

By Jennifer Archie, Gail Crawford and Ulrich Wuermeling

On October 6, the European Court of Justice ruled that Decision 2000/520 of the European Commission, which stated that Safe Harbor-certified US companies provide adequate protection for personal data transferred to them from the EU (the Safe Harbor Adequacy Decision), is invalid (Case C-362/14 – Maximillian Schrems v [Irish] Data Protection Commissioner). The judgment is immediately effective without a grace period. The Data Protection Authorities of the EU Member States (Article 29 Working Party) have already scheduled a working group emergency meeting to discuss the consequences of the judgment, but it is unlikely that the meeting will lead to a simple solution for the 4,000+ US companies who rely on Safe Harbor. The European Commission has also published a press release with a short set of guidelines.

The Reasoning of the Court

In its judgment of 6 October 2015, the Court stated that

  • “legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter”
  • “legislation not providing any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter.”