• The following is a checklist of ten things to consider before entering into a confidentiality or non-disclosure agreement: 1. What information must be treated as “confidential”? Clarify whether any information disclosed should be treated as confidential, or only information which is in a particular form or expressly marked as “confidential”. 2. Who can have access to the confidential information? Which employees or professional advisers can confidential information be disclosed to? 3. For what permitted use can confidential information be put? Decide whether or not information can be copied, modified or only used for only a specific business purpose (e.g. in connection with a particular contract). 4. Are intellectual property rights also licensed? The disclosing party should reserve all its intellectual property rights in disclosed information. 5. Are there exclusions to confidentiality obligations? Typically confidentiality agreements do not apply to information which the recipient is required to disclose by law or which lawfully comes into the public domain. 6. How long will confidentiality obligations last? State how long the confidentiality agreement will last and when the disclosed information must be returned. 7. Are there other legal issues to consider than just confidentiality? For example, confidentiality restrictions on employees must not restrain trade by continuing for an excessively long time after the employment has ended. 8. Restrictions on assignment. If the confidentiality agreement is not transferable to a third party this should be stated. 9. Remedies for breach of contract. Often a disclosing party will seek to obtain an indemnity from the recipient of information for unauthorised disclosures of confidential information. 10. Use a good precedent. For more information on this topic email info@legalaccelerator.com or visit our website www.legalaccelerator.com
  
  
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• The following is a checklist of ten things to consider before seeking data protection compliance advice: 1. Are you processing “personal data”? If the information does not relate to a specific identifiable individual, then the data is not “personal data” as defined by data protection legislation. 2. Who is processing the data? This is an important point to clarify; the legal entity which controls processing is the one which needs to comply with the law. 3. Why is the data being processed? You must tell people why their data is being used. 4. Where is the data being processed? The location of processing affects which countries’ laws may apply. 5. To whom will data be disclosed? Any disclosures of data need to be consistent with what people were told would happen to their data. 6. Are there contractual restrictions? You should consider whether there are existing contracts which restrict what you propose to do with the data. 7. Are there other legal issues to consider than just data protection law? For example, confidentiality, intellectual property or other legal restrictions on your use of the data? 8. Might your business already have addressed this issue in the past? Don’t reinvent the wheel – for example, reusing existing data protection notices and consents saves money and time. 9. Have you checked for regulatory advice on this issue? Regulators provide free plain English guidance on how to address most issues – see for example, www.ico.gov.uk. 10. Have your legal advisers advised on this issue before? If not, find some who have! For more information email info@legalaccelerator.com or visit our website at www.legalaccelerator.com
  
  
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• UK – £500,000 Fines for Data Breaches New powers enabling the UK data protection regulator, the Information Commissioner, to impose £500,000 fines for serious data breaches have come into force. The new powers enable the Information Commissioner to take more forceful action against companies which fail to take appropriate measures to protect personal data in accordance with the UK Data Protection Act. The Information Commissioner has produced guidance indicating that fines imposed will depend on the severity and effect of offences and that he will take a pragmatic and proportionate approach to this issue. For more information visit: http://www.ico.gov.uk/for_organisations.aspx
  
  
• UK – New Anti-Bribery Act The Bribery Act came into force on 8th April and contains a new framework to prevent bribery in the UK. It creates offences of offering, promising or giving or receiving a bribe. It also creates a new corporate offence by a company of failing to prevent a bribe. Additional guidelines will be published by the UK Government showing what companies should do to prevent liability for bribery. Given existing anti-bribery legislation in other countries notably in the US, companies and directors wishing to avoid liability for this should review their processes, in particular sales and marketing procedures. For more information visit: http://www.justice.gov.uk/publications/bribery-bill.htm
  
  
• UK – International Data Transfers - New Model Contract With effect from 15th May, the new EU “model contract” for data transfers takes effect. Under data protection rules, international transfers of personal data are prohibited to countries outside the European Economic Area unless “adequate safeguards” are put in place. “Adequate safeguards” are ensured by use of the new “model contract” approved by the European Commission. The model contract covers transfers of personal data to “processors” (service providers) outside the EEA. This might be useful where, for example, companies wish to transfer personal data to outsourcing service providers in the USA or India in accordance with applicable data protection law. For more information visit: http://ec.europa.eu/justice_home/fsj/privacy/modelcontracts/index_en.htm
  
  
• EU – Avoiding Anti-Competitive Agreements The European Commission has adopted a new “vertical agreements block exemption”. The European antitrust regime prohibits anti-competitive agreements, in particular restrictions on sales and resale price maintenance. However companies selling products within Europe are permitted to impose restrictions on their European distributors where these fall within applicable “block exemptions”. The new block exemption regulation will take effect from 1st June, with a transitional period of one year for pre-existing agreements. Companies entering distribution or sales contracts within Europe should therefore ensure their agreements fall within the block exemption to be confident their agreements do not breach competition rules. For more information visit: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/445
  
  
• EU – Review of Rules Governing Contracts with Public Authorities The European Commission has announced a review of public procurement rules. Public procurement is the process by which public authorities award contracts to companies. A transparent public procurement regime is considered important in preventing corruption and controlling the costs of public sector contracts. The EU believes its rules in this area need to respond to changing commercial realities, in particular e-commerce. The review will include producing comprehensive guidelines for member states which will in time filter through into national laws. The comprehensive evaluation of EU procurement legislation is due to be completed in Spring 2011. In the meantime existing procurement rules continue to apply. For more information visit: http://ec.europa.eu/internal_market/smn/smn57/docs/public_procurement_en.pdf
  
  
• USA – Tax Breaks Under The Hire Act In order to encourage employment, the US Government has enacted the Hiring Incentives to Restore Employment Act (the "HIRE” Act). The HIRE Act provides temporary tax benefits for employers who hire unemployed workers before 1st January, 2011. Relevant employees have to obtain statements from new employees certifying that they were unemployed for 60 days before starting new work or worked less than 40 days for someone else during the 60 days period. For more information visit website: http://www.irs.gov/newsroom/article/0,,id=220326,00.html
  
  
• Legal Accelerator Registers 50th Law Firm Legal Accelerator has registered its 50th law firm and now has registered members in over 25 countries. With registered experts from both large and small law firms across the globe, Legal Accelerator is becoming the one-stop shop for businesses seeking specialist international legal advice
  
  
• Disclaimer: the trade mark “Legal Accelerator” is a registered mark of Legal Accelerator (UK) LLP. Copyright ©2010 Legal Accelerator and its licensors. All rights reserved. Specialist advice should be obtained before taking, or refraining from taking, actions based on comments in this document which is only intended as a brief note on the issues involved. Email us at the email address above to be deleted from this mailing list. Legal Accelerator (UK) LLP The Knoll, Garnes Lane Fulbrook, Oxfordshire. Registered in England and Wales. Regn. No. OC343649. Telephone 07908 899 408 www.legalaccelerator.com admin@legalaccelerator.com OX18 4BN.
  
  
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This article looks at some new legal burdens affecting businesses and provides some practical suggestions on how organisations can manage their legal issues efficiently.

Regulators and Government bodies face public criticism that they are not doing their jobs properly. From the Financial Services Authority to Haringey Social Services, regulators fear media headlines accusing them of being “asleep on the job” or a “toothless tiger”.

So regulators are keen to be seen to be actively enforcing the law and claim that good legal compliance is “good for business”. However the British Chambers of Commerce Burdens Barometer 2009 identifies the total cost of major regulations to British businesses since 1998 at a staggering £76.81 billion. Being told that regulatory compliance is good for you is fine in principle - there’s just the small question of paying for it all.

As a result many smaller organizations simply fail to adequately address their legal exposure. In an age of potentially massive fines and damages awards, company directors or school governors that fail to properly consider their legal risk are playing Russian roulette.

Top Ten Tips: That does not mean however, that companies or schools should simply rush to engage external counsel to “get compliant”. There is a lot that they can do to manage their legal risk themselves by following a few simple rules:

1. Focus on protecting critical assets. All legal risks are not the same so prioritise. If your business or school relies on its reputation and goodwill, properly protect your brand by registering your trade marks with the UK Intellectual Property Office or equivalent international trade mark registries. If you are reliant on a few key customer or supplier contracts, make sure you understand what those contracts say.

2. Focus on real not imagined risks. Some legal risks are more theoretical than actual. When considering possible regulatory sanctions and compliance, consider how often these have resulted in costs and penalties in practice.

3. Prevention is better than cure. Obtaining a data protection registration for £35 is a lot cheaper than handling a regulatory criminal investigation as to why you have not registered. Likewise, if possible get your IT developer or marketing agency to agree to transfer ownership in materials to you before they create them as getting an assignment after the event is likely to be more difficult or impossible.

4. Keep informed of legal developments. You can keep on top of topical legal issues by signing up to free legal updates offered by law firms. Or alternatively register for free legal newsfeeds from online providers such as Lexology.com.

5. Allocate appropriate staff. Leading businesses do not simply outsource all their legal requirements to external legal counsel. On the contrary the large banks are currently squeezing some law firms by requiring that they provide cheap secondees at cost (effectively removing the firm’s profit on its workers). So why not engage a secondee or consultant or part-time worker on a retainer basis instead of a full-time employee?

6. Use technology. Legal services are becoming increasingly commoditised. For example, why pay for a bespoke service when free data protection training DVDs are available from the Information Commissioner?

7. Get insurance. This is another way to limit your legal risk. You can now obtain insurance against regulatory investigations or litigation costs.

8. Exploit your legal assets. Look at ways in which management of legal issues can add value to your organisation. This might include for example wider licensing of your technology, or transferring legal assets so as to achieve tax savings or security for loans

9. Store documents properly. A contract or certificate is of no use unless you can find it quickly in response to regulatory or tax investigations or litigation. If you don’t know when you need to renew patents or trade marks or terminate contracts, you will be unable to exploit opportunities (e.g. to renegotiate prices) as they arise.

10. Have a plan. Legal management ultimately involves taking decisions. Of course each organization needs to cut its cloth according to its budget. But all schools, colleges and businesses should have a clear written plan to manage legal matters, if only for directors, trustees and governors to avoid personal liability for failure to exercise appropriate governance.

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Legal Accelerator has launched the first of a series of legal risk management surveys, analysing business attitudes to legal risk.

This survey is the first of many enabling businesses to assess their legal risk management priorities compared with other UK businesses. Other topics to be surveyed in future will include for example contractual, employment, insurance and regulatory compliance risk management.

Each survey should take approximately 5 minutes to complete.

Survey results showing individual responses will not be made available to any third party. However respondents to the survey will receive a report detailing how their answers differed from the norm and what additional steps might usefully be considered to manage legal risk. As such we at Legal Accelerator hope that this will be a useful resource for compliance managers and lawyers when deciding how to allocate scarce resources.

This survey is open to those responsible for legal compliance and risk management within businesses. If you would like to participate, please email admin@legalaccelerator.com and we will send you the relevant the survey form.