influence updates

Significant penalties for battery producers in European cartel case

Posted on by influence legal.

influence legal battery cartel publicdomainpictures pixabayAt about the same time as the ACCC achieved substantial penalties in the financial services attempted cartel conduct case, the European Commission fined Sony, Panasonic and Sanyo €66 million for cartel conduct in relation to rechargeable batteries.

During the period of the cartel, the companies agreed on temporary price increases based on fluctuations in the price of raw materials. They also exchanged sensitive information including:

  • supply and demand forecasts,
  • price forecasts and
  • competitive bids to manufacturers of battery-powered products.

The conduct took place both within Europe and in Asia.

Samsung was not fined as it revealed the existence of the cartel to the Commission. All companies acknowledged their involvement in the cartel and agreed to settle the case, meaning that Sony, Panasonic and Sanyo also received penalty reductions.

2016 also saw substantial Australian fines for Colgate and Woolworths in relation to cartel conduct for ultra-concentrated laundry detergent, with Unilever having received immunity. This was preceded by a 2011 European case in which Procter & Gamble and Unilever were fined €315.2 million in relation to a cartel for household laundry detergent. Both received a fine reduction for co-operation and Henkel received immunity for revealing the cartel.

Both the ACCC and the EC, along with more than 50 competition regulators worldwide, have policies of granting immunity or leniency to the first cartel member to approach the regulator. There are substantial criticisms of the leniency approach, including that it is used as a strategic opportunity by cartel participants to enforce cartel arrangements and game the system. With outcomes like those in the recent cases, though, leniency will clearly remain a significant tool for regulators.

Highlights of 2016 and areas to watch in 2017

Posted on by influence legal.

Influence Legal ParliamentHere is a round-up of some key developments in 2016:

  • The Telecommunications Sector Security Reforms went through 2 rounds of public consultation and have now been referred to the Parliamentary Joint Committee for Intelligence and Security. These reforms will impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
  • The Masters Bendigo case saw developments in relation to agreements to agree and good faith.
  • There were several key cases in the credit reporting area, including the Veda trade mark and SEO case, and the OAIC determination requiring Veda to improve accessibility of free credit reporting.
  • The Productivity Commission released its report on IP arrangements, prompting public debate in relation to fair use and the rights of copyright holders.
  • The OAIC consulted on its draft Big Data guide.
  • An exposure draft of the Harper review bill was released.
  • The unfair contracts rules for small business came into effect from 12 November.
  • The ACCC took landmark consent proceedings relating to attempted cartel conduct in the financial services industry.
  • The Federal Court found that Woolworths’ “Mind the Gap” payments were not unconscionable.

Areas to watch this year:

  • Data protection remains a key focus area with significant developments continuing in Australia (including the Notifiable Data Breaches Bill), the EU (the European Union General Data Protection Regulation will take effect in May 2018 and will significantly affect data relating to employees) and across the globe.
  • Trade secrets have become another focus area.  In 2016 the European Council approved the Trade Secrets Directive to harmonise European trade secrets protection. Member states will need to implement the directive by mid 2018. The US Defend Trade Secrets Act 2016 has created a federal jurisdiction for misappropriation of trade secrets including significant whistleblower protection which will need to be reflected in US employment and confidentiality agreements.
  • Ahead of the release of its 2017 priorities, we can anticipate that the ACCC will continue to focus on unfair contracts in business, cartel conduct (following the significant financial services case) and optional extra preselection in the airline industry. The ACCC is seeking submissions on a proposed FIFO airline alliance (due on 27 January) and on its draft decision for the declared superfast broadband access service (SBAS) and the local bitstream access service (LBAS) (due on 17 February).
  • CAANZ will report on the first Australian Consumer Law review by March.
  • Further legal and regulatory attention is likely in the problematic commercial VET sector, with reforms promised to address the significant consumer protection issues that were highlighted during 2016.
  • On the IP front, submissions are due by 22 January on the proposed IP Laws Amendment Bill.

ACCC action on attempted cartel conduct in financial services industry

Posted on by influence legal.

influence legal competition lawLate last month the ACCC announced that it has commenced consent proceedings against ANZ and Macquarie in relation to allegations of attempted cartel conduct.

The proceedings involve conduct in 2011, when traders at Macquarie and ANZ, as well as other banks, are alleged to have communicated in private chatrooms about submissions to be made to the Association of Banks in Singapore about the benchmark rate for the Malaysian ringgit (MYR), and the Macquarie and ANZ traders are alleged to have tried to make arrangements with other banks to make high or low submissions.

The ACCC, ANZ and Macquarie have agreed on facts and penalties to be submitted to the Federal Court. The proposed penalties are $9 million for ANZ and $6 million for Macquarie, as well as costs contributions. Continue reading ACCC action on attempted cartel conduct in financial services industry

Franchisors – are you ready for the new unfair contracts rules?

Posted on by influence legal.

NotebookThe new unfair contracts rules will apply to protect small businesses in standard contracts that are made or varied from 12 November 2016.

Franchisors should already have amended their agreements and disclosure documents, and included the new information statement in their document packages, following the earlier amendments to the Franchising Code of Conduct that took effect last year.

Franchisors also need to remember to keep their disclosure documents up to date.

The unfair contract rules protect small business by prohibiting standard contract provisions which: Continue reading Franchisors – are you ready for the new unfair contracts rules?

Focus on privacy issues for IoT businesses

Posted on by influence legal.

network-782707_1280-copyThe OAIC has recently reviewed privacy issues surrounding Internet of Things businesses in Australia.

The review was undertaken as part of the Global Privacy Enforcement Network’s (GPEN) fourth annual privacy sweep.  GPEN’s 2016 sweep included results from 25 national agencies and reviewed 314 businesses and devices such as wearables, smart TVs and health monitors.  The results showed significant numbers of those businesses failing to explain to consumers how their personal information is collected, used, disclosed and safeguarded.  Many also did not offer assistance to consumers to help them manage default settings, delete data or wipe their data if the device was lost.

For the Australian section of the sweep, the OAIC reviewed 45 different devices from existing and start-up businesses.  The devices reviewed ranged from fitness monitors to thermostats.  Of these devices, over 30 were considered to have inadequate or non-existing privacy policies to explain to consumers how their personal information would be managed.

The OAIC has foreshadowed that it will publish resources for start-ups to assist them in developing appropriate policies.

Like other businesses, IoT businesses need to be aware of the thresholds for privacy compliance, and also the reputational need for compliant privacy procedures.

Contact us if you would like to arrange a review of your privacy policy.

AOC suffers setback in preventing Olympic Games ambush marketing

Posted on by influence legal.

swimming-pool-594204_1920The Australian Olympic Committee has released a statement following last week’s Federal Court decision to dismiss its application against Telstra in relation to Olympic Games-themed advertising promoting Seven’s “Olympics on 7” app.

The Telstra ads prompted consumers to “Go to Rio with the ‘Olympics on 7’ app” and described Telstra as the “Official technology partner of Seven’s Olympic Games coverage”.

Telstra last year ended its longstanding sponsorship of the Australian Olympic Team.

Continue reading AOC suffers setback in preventing Olympic Games ambush marketing

IOC changes Games advertising rules

Posted on by influence legal.

Photo: tinaboldIn the lead-up to the Rio Olympic Games, it’s worth noting that the International Olympic Committee last year issued guidelines relaxing Rule 40 of the Olympic Charter, which prevents competitors and team personnel from appearing in non-sponsor advertising during the Games period.

However the 2015 guidelines didn’t go as far as some athletes hoped or as some reports have suggested. The guidelines allow non-sponsors to continue with pre-existing, non-specific campaigns during the Games period, as long as the campaign has been approved in advance by the IOC or the relevant National Olympic Committee.

Restricted terms include Rio, victory, summer, performance and games, where the advertisement otherwise suggests a connection.

The IOC’s social media guidelines also restrict athletes’ ability to engage in non-sponsor promotions, so it’s by no means a free-for-all.

The Olympic Games advertising blackout period runs from 27 July to 24 August, and then from 30 August to 21 September for the Paralympic Games.

Submissions due on OAIC’s draft big data guide

Posted on by influence legal.

The Office of the Australian Information Commissioner is calling for submissions on its draft Guide to big data and the Australian Privacy Principles.

The document will not be legally binding or replace the APPs, but will be used by the OAIC as a reference point. As such, some elements of the guide are broad-brush – such as the recommendation not to be “creepy” – while other recommendations are more specific.

Key recommendations in the draft include: Continue reading Submissions due on OAIC’s draft big data guide