In pulling together our list of the top five legal and business topics from the past year, what is striking is that while many of these will remain high priorities for the year ahead, the focus will shift, as new technologies progress through the hype curve and work preparing for new legislation shifts to post-implementation compliance risk.
The five topics that have stood out for us have been the following:
1. The digital revolution
Led by our very own Digital Revolution Knowledge Lawyer, Catherine Hammon, throughout 2018 we have been focussing on some of the technologies and trends that have been disrupting markets and business models.
At Osborne Clarke, we have for some time identified blockchain as a leading disruptive technology, launching our Blockchain Insights page with a special report back in mid-2017. But 2018 was the year that we started to see this translate into major real-life applications, and legal issues – not least the inherent challenges posed by the GDPR. 2018 has also seen great leaps forward in artificial intelligence and the internet of things, each of which bringing their own legal and technical challenges, including the importance of cyber security for connected consumer devices and the question of how competition law should apply to the digital economy. We have also been looking at the role of in-house lawyers in supporting digital transformation in their businesses, including at an event in June 2018 on the role of in-house lawyers in smoothing the pathway to digitisation for their organisations.
2. Next-generation connectivity
One of the developments that has the potential to drive the next phase of digital transformation for many is next-generation connectivity. Equipped with next-generation connectivity, business leaders have the opportunity to rethink the ways they do business, to reduce inefficiencies, to reach new audiences, to better serve existing ones and to open up new revenue streams. They also face new competitive threats and risks.
In 2018, we teamed up with the Economist Intelligence Unit, who surveyed 550 senior executives from 11 countries at organisations in five key sectors: tech, media and comms, energy and utilities, financial services, real estate and infrastructure, and transport and automotive. Our report identified the challenges and opportunities posed by next-generation connectivity.
Despite dominating the headlines throughout 2018, Brexit has been and remains a source of great uncertainty for businesses.
2018 started with a degree of optimism, following a "heads of terms" agreement in December 2017 on the terms of the UK's withdrawal from the UK, and a draft Withdrawal Agreement in March 2018 that was said to be largely agreed. On our Brexit Insight page and through our regular Brexit Business Brief newsletter, we have followed the progress of the negotiations and legislative measures throughout the year, explaining what this might for businesses and what they can do to prepare. The Brexit special edition of our UK Regulatory Outlook in July 2018 looked at the impact of Brexit on 16 different regulatory areas for businesses trading in or with the UK.
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To many in-house lawyers in particular, 2018 will be remembered as the year of GDPR. An EU Regulation that had been trailed by data protection lawyers for years transcended into the wider public discourse – in large part as a result of the flurries of emails that we all received in the run up to 25 May 2018 seeking consent to continue receiving marketing emails (which of course, in many cases were not needed where other lawful bases for processing that data could have been relied upon).
Through our dedicated GDPR Insights page we posted articles on a range of topics in the lead-up to the GDPR (and implementing national legislation) coming into force, including the impact of the GDPR on: employment contracts, internal investigations and share plans.
Post-implementation, our 100 Days of GDPR series of videos and articles looked at some of the issues that we had been advising on since the GDPR came into force, including the need (or not) to appoint a Data Protection Officer, security and data incidents and a look to the future (including the impact of AI). Many of our most-read Insights this year have related to the GDPR, including articles on profiling and automated decision-making, Data Protection Impact Assessments and "blockchain and the GDPR: beyond the right to be forgotten" – all of which will remain relevant for businesses in 2019.
5. Consumer regulation
Regulatory risk in various different forms has been a Board-level issue throughout 2018, particularly for consumer-facing businesses. Alongside headline-grabbing EU legislation such as the Geo-blocking Regulation, PSD 2 and of course the GDPR, in April 2018 the European Commission announced its wide-ranging New Deal for Consumers. The proposals represent substantial reforms to consumer law, including GDPR-level fines, the facilitation of group actions for breaches of consumer law and new consumer rights for free digital services.
Digital markets have been the subject of regulatory and legislative attention. For digital content, the passage of EU copyright reforms has been hugely controversial, and key differences remain to be resolved, while businesses are also preparing for the new Audiovisual Media Services Directive. One of the hot topics for digital markets and marketplaces has been the extent to which businesses can protect brands through selective distribution networks or online sales bans.
Consumer finance has been subject to intense scrutiny by regulators over the past year, with European and national regulators examining issues ranging from price discrimination to bundled handsets, affordability and transparency.
Our UK Regulatory Outlook combines regular updates on a wide range of regulatory regimes a six-monthly horizon-scanning report, covering areas of regulation that apply to all businesses operating in the UK.
And what's coming up in 2019?
One trend that looks set to rise up the agenda in 2019 is business transparency. The second year of mandatory gender pay reporting will be significant as data can be compared to last year's figures, and progress can be assessed against any measures that the business said it was taking to close the gap. The government is also consulting on introducing ethnicity pay reporting, and quoted companies with more than 250 employees will also need to start reporting ratios of CEO pay to the median, 25th and 75th percentile of employees. New legislation is either incoming or expected in other areas of business transparency, including supply chain transparency, ownership transparency and environmental transparency. On our business transparency Insights page we will be following these developments and explaining the implications for businesses.
The first half of 2019 will be a decisive time for some high profile pieces of EU legislation, including: the ePrivacy Regulation, copyright reforms and a Platform-to-Business Regulation. The copyright reforms have proven controversial throughout the legislative process, and the ePrivacy Regulation has also slipped well past the original May 2018 target for implementation, but legislators will be keen for them to be passed before the end of the current term of the European Parliament. Other potential new EU legislation to look out for in 2019 includes an EU "Cybersecurity Act", which will increase the powers of the EU Agency for Network and Information Security (ENISA) and introduce a certification scheme for ICT produces, services and processes.
Finally, Brexit will remain a major focus for businesses trading either in or with the UK. As the year begins, many businesses will be focusing on no deal contingency planning. Depending on political movements during January, this effort will either intensify in the run up to 29 March, or will switch to a more nuanced understanding of where points of difference may arise in a largely status quo transition period, and what is on the horizon at the end of that transition period.
We will be following and advising on each of these areas throughout the year. To understand how they may impact your business and what you need to do to prepare, please speak to your usual Osborne Clarke contact or register to receive our legal Insights.