Legal Updates

Sending personal data to US companies: Safe Harbor shenanigans

Executive summary

  • UK businesses which transfer to or share with US companies any databases containing personal data have to comply with rules set out in the Data Protection Act to ensure that the transfer or sharing protects the individuals’ privacy rights.
  • One way of doing this was a voluntary scheme set up by the US Department of Commerce called “Safe Harbor”. The EU’s highest court has now ruled that Safe Harbor is not fit for purpose and cannot be used.
  • Transfers/sharing which relied on Safe Harbor therefore breach the DPA and, after 31 January 2016, further transfers risk enforcement action, including fines.
  • Other compliance methods can be used instead, but these need to be put in place quickly to stay within the law.

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New multiple entry tourist visa for Thailand

In September 2015, a notice appeared in the Thai Government Gazette announcing the launch of the Multiple Entry Tourist Visa (METV). Thai Embassies are expected to start issuing such visas as of November 13, 2015.

The METV is an addition to the tourist visa. In the past, single-entry or double-entry tourist visas were most commonly issued. The METV permits the holder to travel in and out of Thailand multiple times during the 6-month validity period of the visa with duration of stay of up to 60 days per visit. The cost of an METV will be 5,000 baht. As the METV is newly implemented, please note that all Thai Embassies may not be completely familiar with this type of visa and the requirements for its issuance.

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Craig D. Levey to Present at MBA CLE Seminar

Panelists will provide insight on and best practices for litigating complex business disputes, and will address all aspects of the BLS, including proper subject matter, applying to the session, procedural orders, discovery, and dispositive motions.

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Pennsylvania Supreme Court Holds That Mere Continued Employment Is Not Adequate Consideration To Support A Restrictive Covenant

Weighing in on an issue that is drawing attention nationwide, the Pennsylvania Supreme Court recently held, in Socko v. Mid-Atlantic Systems of CPA, Inc., that the mere continuation of employment is not sufficient consideration to support a restrictive covenant.  Rather, for there to be sufficient consideration, the Court held that the employee must receive “some corresponding benefit or a favorable change in employment status.”  As examples of such sufficient additional consideration, the Court cited “a promotion, a change from part-time to full-time employment, or even a change to a compensation package of bonuses, insurance benefits, and severance benefits.”   The Court did not, however, provide any detail as to the size of the additional consideration that must be provided; it merely gave examples of types of additional consideration. 

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Disruption in Marketing & Advertising: Engaging & Influencing Customers Online

As mentioned, at BAA I gave a presentation on how disruption is permeating advertising, media, and marketing today. I now will share with you the final installment of the series…

How do brands engage consumers in ways directly relevant to the target audience?  The answer may be Shopper Marketing – more appropriately dubbed as “Omnichannel Marketing.”  These marketing tactics are about engaging and influencing customers on their path to purchase.  They are about driving consumer engagement using content, technology, data and insights, together with promotions, branded campaigns and social interaction.  It’s about delivering the right products, in the right environment, in ways that are relevant and effective today. 

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OSHA Fines Rise – Employment Law This Week

Employment Law This Week – Epstein Becker Green’s new video program – has an interview with attorney Valerie Butera, editor of this blog, on OSHA’s first fine increases in 25 years.

Under a new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015 – an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward. Valerie describes how employers can boost their safety programs and avoid OSHA citations. 

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Disruption in Marketing & Advertising: Trust in Digital Media

As mentioned, at BAA I gave a presentation on how disruption is permeating advertising, media, and marketing today. Today I will share with you the second installment of this three-part series…

One of the biggest issues facing advertisers, marketers and agencies today is the concept of “Trust.”  Not “Trust” in the context that advertising lawyers usually consider – the truth and falsity of advertising claims.  Rather, the issue is “Trust” as it relates to digital media.  And this issue relates to brands as well as media buying agencies. 

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Big Data Discrimination: Is the Industry Responsible?

The ad tech industry continually improves its use of data to segment users into unique groups and target them with the right message at the right time. Data analytics is now a valuable and essential component of digital media buying, as can be seen through the growth of data-management platforms. Campaigns are considered effective when the data reveals that ROI has increased based upon the targeting and segmenting.

However, have you ever considered if there are unintended negative consequences of such big data analytics and retargeting? While campaigns can use detailed data analytics to reach a representative sample of consumers, it is also possible that the data results in excluding consumers of certain socioeconomic backgrounds from ads as well as any resulting offers, discounts or promotions.

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Challenging customs

Ivory is a complicated subject, legally and morally. 

The killing of elephants for their tusks is abhorrent, and doing so and trading in the ivory are internationally outlawed.  Where it gets problematical is with art and antiques.  Since prehistoric times, ivory has been used to create objects of art, or components such as piano keys, or to ornament items such as jewellery or furniture, sometimes to only a very limited extent.  Opinions vary as to how such objects should be dealt with, from compulsory destruction, to make a point, to leaving alone, as any wrong involved cannot be undone, and issues of cultural heritage and scholarship can arise. 

Fortunately, I do not have to decide laws, just work with them.  For cross-border ivory movement, the starting point is an international treaty known as CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) on top of which individual states have their own related laws and regulations.  If those can be satisfied, licences are required for exporting and importing.  

I recently had a case where a highly respectable London dealer, specialising in Indian and South East Asian Art, had bought some 17th century Indian carved ivory Yali brackets at Bonhams in New York.  These small items, the largest only 15cm high, would have formed part of a processional mandapa (temple hall), an elaborate structure that carried sculptures through the streets during special festivals. The brackets are very rare, and examples can be found in the Victoria and Albert Museum and the Los Angeles County Museum of Art. 

Unfortunately, due to an error on the part of the dealer’s carriers, the items arrived at Stansted Airport with inadequate documentary evidence of the US export licence that had been obtained.  As a result the UK Border Force seized the brackets and prepared to destroy them.  Although there could have been a claim against the carriers, the dealer’s main concern was the preservation of these important items.  He demonstrated what had happened, and he even offered to donate them to a museum, but UKBF would not be moved. They said the dealer should have made a new retrospective application to the US, and that he was at fault for not doing so, although such an application appeared to be impossible. 

Enter the lawyers.  The dealer’s legal team consisted of no fewer than three art lawyers: the English barrister Jessica Franses, me as solicitor conducting the case, and US attorney Nicholas O’Donnell, the last being able to attest to the impossibility of a retrospective licence.  A tribunal appeal was launched in November 2013.  Statements were obtained, including expert evidence on the historic and cultural importance of the items, but the UK Government’s lawyers remained unmoved.  Finally, after almost two years, and just two days before the trial, the UKBF caved in and announced that the decision had been reviewed and that the brackets could be collected from the airport, where they had remained. 

There are a number of points to be made.  First, dealers and their agents and contractors must take the greatest care to get the paperwork right.  Secondly, customs organisations can be very strict and inflexible.  Thirdly, they will happily destroy valuable art and cultural heritage.  Finally, it can take a lot of time, effort and determination to get them to see reason and act fairly, but it can be done.

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Disruption in Marketing & Advertising: Staying on Top of the Evolving Legal Landscape

The lines between advertising agencies, digital agencies and even product development shops are blurring.  We are seeing the rise of “brand activation agencies” that use shopper technologies, experiential marketing and targeted promotions to create products and foster consumer engagements.  Just like the four innovators in the video, marketers and agencies are becoming agents of disruption.  These companies are changing the way we travel, invest, pay, read, book appointments, and more – while upending a currently existing sector. 

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