How to stay legal in 2019

From GDPR to trademarks, staying on top of legal challenges is a great resolution for 2019

How to stay legal in 2019

It’s that time of year again, when we resolve to become better versions of ourselves. If you’re looking for some new year’s inspiration that you might actually stick to, here are some ideas for resolutions to help your business.

Get on top of data protection

There was a time last summer when you couldn’t go anywhere without being stalked by notices asking whether you would like to opt in to mailing lists and give your consent to cookies. The General Data Protection Regulation (GDPR) launched in May in a cloud of publicity, with businesses everywhere fearing the consequences. If you haven’t gotten on top of your data protection obligations yet, then now’s the time. It’s really not that bad. Promise.

Start by defining the who, what, where, why and how. So, who do you collect or hold information on? GDPR only relates to information about living individuals, for example, employees and customers.”

Secondly, ask yourself why you’re collecting the information? For example, in the case of employees, it will be to fulfil your obligations as employer, to maintain HR files and deal with payroll and auto-enrolment. In the case of customers, your why will include holding data to send marketing communications and process orders and payments.

Once you know the why, you can then assess how much information – the what – you need to properly complete those purposes. Your duties as a data controller include collecting enough information to be able to fulfil your obligations properly but collecting no more than necessary. For example, it may be sufficient to confirm that someone is over the age of 18 but you might not need their full date of birth.

Which leads us to where the data is kept. Data controllers are under obligation to keep information secure. To do this, you’ll need to consider where it’s held and the nature of that information. The more sensitive data will require higher levels of security. Appropriate measures could range from storing papers in a locked filing cabinet with limited access to the key or, in the case of data held in electronic form, using encryption technology, strong passwords and having a robust back-up system.

So how will you use the information? If it’s disclosed to third parties you’ll need to check that arrangements with those third parties are GDPR-compliant. For example, you may transfer employee data to a third party payroll provider. Similarly, you may need consent for certain processing like marketing opt-ins in which case, how is that consent obtained and documented?

You can also consider mapping information from cradle to grave. Think about a piece of data that you collect and the complete journey information goes on from the point at which you collect it to the moment you dispose it and potentially everything in between.

Once you have a clear understanding of what information is being processed, why and how, it will be much easier to spot any GDPR holes that need to be fixed. You can then update policies and procedures and make sure key documents like privacy policies are up-to-date. Ensure you document the process to address accountability obligations in GDPR.

Review and update terms and conditions

Many businesses have a tendency to prepare their terms and conditions but then forget all about them. Yet in the event of a dispute with customers, your terms and conditions will be one of the first things your solicitor asks to see. A good set of terms and conditions will be both a sword – for example to assist in debt collection from problem payers – and a shield against liability and other claims. In the case of franchise networks, terms and conditions are even more important since all franchisees in the network are likely to be relying on the same document.

Standard terms should be updated every time your commercial terms change. If you evolve the way you calculate charges or payment terms, then the standard terms should reflect that. They should also be periodically reviewed and updated to comply with the latest law.

For example, there have been significant legislative changes in recent years for anyone dealing with consumers and especially businesses that sell online or via phone or mail order. In addition, case law is constantly evolving which can impact on the way companies are able to limit their liability in terms and conditions.

No matter how good a set of terms and conditions, they won’t help unless they’re properly incorporated into the contracts with customers. So it’s a good idea to review how terms are being used in practice as well as what’s in them. Make sure staff are aware of how to incorporate terms into contracts and check that everyone is using the most updated set.

Check trademarks

Like terms and conditions, many franchisors register their trademarks early on and then forget all about them. Don’t do that as it’s a good idea to review them from time to time.

First, check the trademarks that are actually in use compared with ones on the register. Logos and brands often evolve over time and so it may well be that the logo now being used is different to the form that was registered several years ago. The difficulty with this is that registering a trademark only confers protection over the mark that was registered. So if the brand has changed, it may be time to submit a new application.

Second, check whether anyone else is using the same or a confusingly similar mark without your permission and if so, take action. It’s important to police the use of a trademark because if a mark becomes widely used, it will lose its distinctive character and no longer be protected. For example, pre-Dyson, Hoover became a generic term for vacuum cleaners. In addition, the longer an unauthorised person continues to use a brand without permission, the harder it will be to stop them in future. As a result, it’s a good idea to regularly check whether any identical or similar marks are in use, whether applications for new, similar marks are being lodged and to take action to stop any potential infringements as soon as you become aware of them.

While there are certainly more challenges on the horizon, keeping these resolutions will ensure 2019 is off to a good start.”

Kate Legg
Kate Legg