Horizon Scanner

Retail & Consumer

Our horizon scanner provides clarity on what legal and regulatory changes lie ahead for retail and consumer businesses so that you can plot your course with confidence.

Note: The Horizon Scanner is up-to-date as of April 2 2024 and is updated at regular intervals throughout the year. 

Times are tough enough without the extra burden of not knowing what’s coming around the corner so this resource is for you and it’s one that we’ll make sure is up to date for you to refer back to throughout the year.

Move through each area to see the key dates and upcoming changes you need to know to support your business and plot your course.

Those involved in the Commercial Property sphere watch the government’s latest announcements with mixed views as the future of commercial properties continues to remain uncertain. Environmental issues, the safety of occupants and more traditional property law regimes such as security of tenure feature in the headlines most weeks as a variety of solutions are debated. Read on to see the developments we have highlighted and contact us if you would like to discuss how these issues may affect you and/or your business.

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Data-driven opportunities for businesses are clearly strategic and significant, whilst the associated risks – if not identified and managed – can be complex and costly. Understanding your own risk appetite in this area, as well as maintaining clear visibility of what’s going on in the wider world from a data perspective is key to realising and maximising the potential of your data. Please read on to see how new legislation and ICO warnings can affect you and your business.

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The Energy, Property, Infrastructure and Construction space is fast evolving, and we appreciate that businesses operating this sphere may face numerous legal queries as a result. As the importance of sustainability and clean energy is only set to increase, we expect to see many developments in the upcoming year. From rooftop solar installations, electrical vehicles, to environmental claims and greenwashing, please read on to see how these topics may affect you and/or your business.

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The world of commercial disputes is an ever-changing landscape for all involved, be those corporate entities or the individuals within the organisations. As we look forward, the upcoming year is no exception to this change. There are some significant developments in this space, and we are looking ahead with the hope of assisting businesses to be well-prepared and well-equipped to deal with these changes. From fraud to secret commissions, greenwashing to ADR, please read on to see how these issues can affect you and/or your business.

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Corporate law is poised for noteworthy changes, requiring companies to prioritise transparency, tackle increasing administrative burdens, and adapt to evolving societal expectations. Please read on for updates to the Economic Crime and Corporate Transparency Bill and how this underscores the need for robust governance frameworks and how changes to the Payment Practises Reporting Regulations and growing ESG obligations indicate a wider effort to foster ethical business practises.

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With the rapid development of AI technology combined with new and innovative uses of data in supply chains, the upcoming year is expected to bring about great regulatory change. Businesses will be challenged too, with many of these complex regulations having a widespread impact across sectors. We are ready to support businesses dealing with these changes and we can help them take advantage of new opportunities whilst minimizing risks in the new legal landscape. Read on for more detail about these expected changes in the commercial and tech world.

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The world of employment is always rapidly changing, and this year is no exception. We expect to see new legislation for carers’ leave and neonatal leave, not to mention rights for flexible working and extended protections for pregnant workers from redundancy. Employers should also be mindful of changes to flexible working requests and National Living Wage increases, more below.

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It has been a fairly busy start of the year on the intellectual property front – with some notable activity concerning lookalike products, bad faith filings and the Companies House. While some judgments have clarified certain legal positions and there has been new law which should improve tracing and tackling concerning companies, there are further queries posed as to how such will be applied and interpreted going forth. We continue to be at the forefront of these developments and are ready to support existing and new clients as they seek to protect and enforce their intellectual property in the year ahead.

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The Levelling-up and Regeneration Act 2023 introduced the controversial mechanism allowing local authorities to auction off leases of vacant high street premises. The legislation will also amend the time limits for enforcement action in the Town and Country Planning Act 1990. The following article explores the new legislation in more detail and assesses its impact on the retail and consumer space.

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The prohibition on letting commercial property with a substandard EPC rating of F or G is now in force. Meanwhile, the Government’s proposal to increase the minimum energy efficiency standard from the current E to B for domestic and non-domestic properties in England and Wales is to be implemented in 2030. It was later announced that the proposals for domestic property would be abandoned but no further announcements have yet been made in relation to non-domestic (commercial) property. With the future position for commercial properties remaining uncertain, property owners and renters will want to stay up-to-date on the Government’s plans.

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Timetable for implementation is unclear, but some measures will come into force in 2024. Overseas entities will be required to disclose and verify their title numbers for their qualifying estates and give details about their trust structures.

The Law Commission is reviewing how the right to renew business tenancies operates and how the regime may be reformed. Many businesses with a “bricks and mortar” presence occupy their premises under tenancies whilst Part 2 of the Landlord and Tenant Act 1954 gives these tenants’ rights to renew their tenancy when it would otherwise expire. The review will reconsider Part 2 and will have a particular focus on supporting efficient use of high streets and town centres to ensure the legislation is suitable for the needs of today’s market. A Consultation paper is expected to be published early in 2024.

These bring sections 79-111 of the Building Safety Act 2022 into force, addressing the duty on the principal accountable person to prepare a building assessment certificate, safety case reports, mandatory reporting requirements, and the provision of information especially regarding higher-risk buildings.

This will come into force on 6 April 2024, bringing the Building Safety Act 2022 largely into force.

Kaushal Corporation v Maria Carmel O’Connor (By her son and Litigation Friend Justin Marciano) [2023] EWHC 618 (KB): The judge found that litigation costs do not fall within the service charge clause under a commercial lease, and that in situations where the construction of a clause would expand a tenant or guarantor’s liability considerably, this should be construed narrowly. So, costs relating to an application for approval or consent could be recovered but the costs of litigation could not.

B&M Retail Limited v HSBC Bank Pension Trust (UK) Limited [2023] EWHC 2495 (Ch): The court held that the new lease should contain a rolling redevelopment break clause which can be immediately exercised with six months’ notice. This gives significant weight to landlords looking to redevelop and need to obtain possession from tenants who have protection under LTA 1954.

Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2: The Supreme Court held that the service charge under the lease was payable upon presentation of the service charge certificate but it did not prevent the tenant from challenging the amount. This decision marks the ability for tenants to “pay now, argue later”.

The ICO warns all organisations to proactively make advertising cookies compliant with data protection law after the positive response to their November call to action. The ICO is also developing AI technologies to help proactively identify websites using non-compliant cookie banners. Privacy practitioners should therefore be making their website cookie banners a priority.

The Data Protection and Digital Information Bill should receive Royal Assent this year. It is the UK’s business friendly, less burdensome version of the EU GDPR. The Bill includes, amongst others, clarifications regarding legitimate interests, scientific research and automated decision-making. Affected organisations – who only do business in the UK and do not plan to expand to the EU/EEA, and multinational organisations that comply with the current UK data protection regime – may find it easier to comply with the new pragmatic approach when the Bill becomes law, although the Information Commissioner’s Office (ICO) has indicated that organisations’ compliance with GDPR would be considered sufficient under UK data protection laws. Affected organisations should monitor the Bill’s progress and consider any practical changes when it becomes law.

With the rapid influx of AI, the ICO has warned businesses to address the privacy risks associated with generative AI technology before adopting it, stating that it will be taking action against businesses who fail to do so. Businesses looking to invest in generative AI must ensure that data privacy risks are carefully considered and addressed before any investment is made and stay proactive rather than reactive and risk hefty ICO fines and subsequent damage to reputation.

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The ICO continues to issue fines to companies who have sent marketing communications to customers that have not opted-in to such marketing – organisations must ensure early steps are taken to ensure compliance with data protection legislation, to avoid fines for being in breach of such legislation when marketing to customers.

The protection of children’s data remains in the regulatory spotlight this year. The ICO is promoting the safeguarding of children through responsible data sharing through partnering with education, law enforcement and social service organisations to raise awareness, creating a toolkit of free resources to promote responsible data sharing, and launching a practical guide outlining how organisations can safely and lawfully share information to safeguard children from physical, emotional or mental harm. Organisations will need to consider risks to children’s data protection and follow such guidance to ensure protection.

The ICO will continue to monitor the evolution of live facial recognition technology to ensure its use remains lawful, necessary, for a legitimate interest, and proportionate – the threshold for collecting personal information in the form of facial image data. In the meantime, organisations looking to implement these technologies – including retailers as a means to tackle retail crime – should consider data protection and privacy issues upfront at the design stage and throughout the lifecycle of the system, to ensure that the high threshold is met. The ICO has stated that each new application will be considered on its own merits, balancing the privacy rights of people with the benefits of preventing crime.

As the bodies responsible for regulating data protection and online safety in the UK, the Information Commissioner’s Office (ICO) and Ofcom are both committed to protecting people online. Ofcom has set out its plans for putting online safety laws into practice now that the Online Safety Act has passed. The Act makes companies that operate a wide range of online services legally responsible for keeping people, especially children, safe online.

Ofcom will give guidance and set out codes of practice on how in-scope companies can comply with their duties, in three phases, as set out in the Act.

The EU’s Data Act entered into force on 11 January 2024 and will become enforceable by mid-2025. It requires affected entities to make personal and non-personal data accessible to other parties for repurposing. Affected entities include i) manufacturers of physical connected products which collect or generate data concerning their use, where such products are placed on the market in the EU, ii) suppliers of related digital services and software in the EU, iii) data holders which make data available to data recipients in the EU; and iv) providers of data processing services in the EU. It seems like a long time until enforcement, however affected organisations should begin assessing their compliance strategies as the Data Act’s obligations may require significant time to implement. Although the Data Act will not directly apply to the UK due to Brexit, organisations should continue to pay heed to their content regulation obligations in overlapping policy initiatives and legislation including the Online Safety Act 2023.

Regulated services and other interested stakeholders will be able to read and respond to draft codes of practice relating to protection of children, in Spring 2024.

Ofcom plans to issue a call for evidence regarding its approach to transparency, user empowerment, and other duties on categorised services in early 2024 and a consultation on draft transparency guidance in mid-2024.

Ofcom will consult on draft codes and guidance of illegal harms duties and publish a statement on its final decisions in Autumn 2024. The codes of practices will then be submitted to the Secretary of State for Science, Innovation and Technology, and subject to their approval, laid before Parliament.

Despite significant delays, the Government has introduced a Bill reforming digital, competition and consumer protection regulations. This large and ambitious piece of legislation strengthens the Competition and Markets Authority’s (CMA’s) powers and introduces a new regulatory framework for digital markets that will apply to large digital companies with UK activities. As a result, the Government intends for the CMA to have a much broader and more powerful toolkit for competition, digital regulation and consumer protection that will enable it to regulate digital markets and protect consumers. The Bill is currently expected to receive Royal Assent in Spring 2024, with the new regimes coming into force in Autumn 2024.

The NIS2 (Network and Information Security) Directive is the EU’s latest policy that aims to improve the collective cybersecurity of member states, and relevant organisations offering services in the EU, including digital service providers and those which serve an essential function in society are expected to comply with the new requirements by October 18, 2024. The UK is in the process of considering similar changes to the original NIS Regulations, introduced by the UK government when it was part of the EU. Whilst there is no action to take at the moment, the UK’s NIS 2 Regulation is one to keep an eye on as it may require businesses caught by the existing NIS Regulation to make changes to its business practices (although any such changes are not expected to be as far reaching as those imposed by the EU).

The 3Million v Secretary of State for The Home Department: The UK Government’s second attempt in amending the Data Protection Act 2018 which disapplied UK GDPR data subject rights for activities relating to immigration control was held as unlawful – the Government must address how vulnerable individuals within the immigration system can access their personal data, within three months of the decision (ruled on 11 December 2023).

Clearview AI Inc v. Information Commissioner [2023] UKFTT 819 (GRC): The American facial recognition company Clearview AI successfully appealed a £7.5m UK data-scraping fine and enforcement order issued by the ICO in 2022 for breach of data protection regulation – it was held that the AI company’s data processing was outside the territorial scope of the data protection regulations, and the ICO had no jurisdiction to issue the notices. The ICO has sought permission to appeal the ruling, so the outcome is one to watch in 2024.

2023 saw a significant uptake on rooftop solar installations and it is expected that this will continue throughout 2024 due to the favourable environment produced by the relaxation of planning rules for rooftop solar installations last year.

With retail outlets, warehouses, distribution centres and manufacturing sites, the trend for rooftop solar is a continued opportunity for the Retail and Consumer sector given the advantages of generating on-site renewable energy via rooftop solar amid consumer attitudes valuing sustainability.

Retail and Consumer sector businesses can use their considerable presence as property owners but also as tenants in the commercial property market to tap into the benefits brought by on-site solar of reduced energy costs, decreased reliance on fluctuating grid prices and cushioning from potential energy shortages. Tenants have an opportunity to lead discussions with their landlords to push forward their sustainability strategies in this favourable environment for solar installations in 2024.

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As the importance of sustainability to consumers has risen in recent years and businesses focus on improving their environmental impact, a note of caution in promoting green credentials and net zero transition progress.

The Advertising Standards Authority (ASA) has increasingly singled out environmental claims as breaching advertising rules. It is expected this scrutiny will continue as part of ASA’s aim to ensure consumers are not being misled by “green” claims.

The general requirement is that the basis of environmental claims must be clear and that any unqualified claims omitting significant information could be found to be misleading for consumers. Absolute claims made must be backed up with a high degree of substantiation. The rules state that “comparative claims such as “greener” or “friendlier” can be justified, if the advertised product provides a total environmental benefit over that of the marketer’s previous product or competitor products and the basis of the comparison is clear.”

This fits with the wider context of cracking down on greenwashing outside of the UK. Building on the recent EU ban on greenwashing, the EU Parliament’s Internal Market and Environment committees are progressing with the Green Claims Directive. This Directive rules how firms can validate their environmental marketing claims and includes a verification system and penalties. It is expected that the Directive will continue through the European Parliament this year and indicates that closer scrutiny of green claims is here to stay.

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COP28 saw key direction setting on Net Zero for the road transport network of interest to the Retail and Consumer Sector particularly regarding supply and distribution. The ‘Global Zero Emission Vehicle Transition Roadmap’ was launched as the first of an annual publication by the Zero Emission Vehicles Transition Council (ZEVTC). The Roadmap aims to assist governments and international partners to bring about growth and target catalytic change across the road transport sector.

In support of this the UK government launched at the COP28 Transport Day a £70 million pilot scheme to improve rapid electric vehicle (EV) charge points at up to 10 trial sites in England.

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The UNEZA was launched by 31 partners including 25 global utilities and power companies with the pledge to advance electrification and renewables-ready grids, and increase the deployment of clean energy.

UK organisations such as EDF, the National Grid, Octopus Energy joined the collaboration which aims to overcome obstacles to the net zero pathway set out by the International Renewable Energy Agency and cited in the 2030 Breakthroughs led by the UN Climate Change High-Level Champions.

UNEZA will develop an action plan to address supply chain de-risking, capital mobilisation and skills development, and facilitate policy and regulatory support.

This is part of a wider strategy to boost EV with the government’s zero emission vehicle mandate in force as of 3 January which aims for 70% of new vans sold in Britain to be zero emission by 2030, and 100% by 2035. The government’s announcements offer greater certainty for EV investment by indicating a clear direction of travel despite the concerns over the strength of the political commitment to specific targets. The ban on sale of new petrol and diesel cars and vans has been delayed until 2035, and the government has missed its commitment to have at least 6 rapid EV charging points at all English motorway services by end of 2023.

Nevertheless, the EV industry is expected to mature in 2024 with continuing demand for greener fleets among fleet operators and private companies. Private companies have increasingly taken the initiative in addressing the core challenge of lack of EV infrastructure by rolling out their own programmes. This is expected to continue with opportunities for collaboration between the private sector and local government in driving local EV infrastructure development. Overall, incorporating EV as a significant green fleet technology into strategies for delivery fleets, supply chains and distribution networks is an opportunity for Retail and Consumer businesses to position themselves as leaders in an increasingly eco-conscious sector.

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Greenwashing is becoming increasingly prevalent in falsely empowering consumers to make more informed choices. The emphasis on being ‘green’ has led to companies promoting how environmentally friendly they are, or at least claim to be. Many consumers select companies based on the impact that the business has on the environment. The result of this is an increase in false statements made by businesses in order to lure in customers that are ‘green-conscious’. Although not enforced in the UK yet, some decisions have been made across Europe relating to this, for example in the case of Alcantara whereby an Italian court ordered the company to stop making “vague, false and non – verifiable green claims”

There is a continuing general rise in collective actions being brought before the Competition Appeals Tribunal (“CAT“), driven largely by the 2020 Supreme Court ruling in Merricks v Mastercard (which confirmed that the complexity of assessing damages, or the diversity of a ‘class’, should not be a bar to certification/ allowing a matter to proceed to trial), as well as a growth in the availability of third-party litigation funding. This puts any large business in a position of dominance at risk of facing claims for significant damages, with tech companies and finance providers being particular targets (and finding themselves facing claims for billions of pounds). In 2023 we also saw the first environmental collective action brought against Severn Trent Water (with further claims against other water companies threatened), the result of which will likely determine whether or not we will see a rise in similar cases centred on breaches of environmental law being issued.

As a general rule, claims with a value of less than £1 million should not be commenced in the Commercial Court. Any cases erroneously commenced in the CC will be transferred out as soon as a judge becomes aware, no matter how close the case is to a hearing. It is the responsibility of all parties to ensure that the claim is dealt with in the correct court, so both parties open themselves up to criticism from the judge if the claim is commenced or continued in the wrong court. The reasoning for this is the finite resources of the CC and the tight time pressures imposed on the CC, meaning that the CC needs to be putting the resources where they are needed the most, i.e., claims valued over £1 million.

ADR may soon become compulsory in all civil litigation disputes. ADR is becoming increasingly common and the recent decision in Churchill seems likely to lead to even more court-ordered ADR. This has significant implications in litigation as more cases will be referred for ADR, leading to earlier settlements and saved costs for all parties involved.

In simple terms, a Secret Commission is where a commission or other inducement, is given by a third party to an agent which is kept secret from the principal. The law treats secret commissions as a “special class” of fraud or bribe. Such remedies include recovery of a sum equal to the amount of the secret commission from either the payer or the payee, damages for fraud relating to any loss suffered, or recission. Claims in relation to these commissions are steadily on the rise and these are expected to maintain the trajectory going forwards.

The Economic Crime and Corporate Transparency Act has introduced a new responsibility for businesses to prevent fraud, meaning that corporates can be held liable if an employee or agent has committed an offence for the benefit of the organisation (without having reasonable fraud prevention measures in place). When surveyed as part of our Fraud Report, only 40% of senior managers in the Retail and Consumer sector were aware of the new failure to prevent offence (the lowest awareness across the eight sectors surveyed), and only 10% of companies surveyed in the Retail and Consumer sector have a dedicated and salaried fraud prevention role in place.

Churchill v Merthyr Tydfil County Borough Council – Court has the power to stay proceedings to allow, or can actually order, parties to engage in non-court ADR.

Gordiy v Dorofejeva and another – The Court warned legal practitioners that claims valued under £1 million should not be commenced in the Commercial Court. The Judge commented that the commencement and/or continuation of proceedings in the correct court is equally the responsibility of all parties.

Alcantara spA v Miko Srl, 712/2021, Ordinary Court of Gorizia –An interim injunction was granted to a competitor on the basis of non-verifiable greenwashing claims.

ASA ruling on HSBC UK Bank plc – HSBC UK Bank plc – ASA | CAP – the basis of environmental claims must be clear and that unqualified claims could mislead if they omit significant information.

Professor Carolyn Roberts v (1) Severn Trent Water Limited and (2) Severn Trent PLC – collective action taken against Severn Trent Water for alleged overcharged water services and abuse of market dominance to under-report pollution incidents.

Wood v Commercial First Business Ltd – The leading case law concerning Secret Commissions.

In the last year, the Economic Crime and Corporate Transparency Bill (ECCTA 2023) has received Royal Assent with details of the new rules surrounding transparency over corporate entities illustrating a modernisation of Companies House operations.

Companies House will now have more effective investigation and enforcement powers and be able to proactively share information with law enforcement bodies if they have evidence of anomalous filings or suspicious behaviour.

There is a particular focus on the requirement for all new and existing directors, people with significant control and those filing information to verify their identity through a new Companies House portal. Many companies will need to reform their internal policies and procedures in order to ensure compliance with the new regime and current practices relating to company secretarial tasks will need to align with

Companies are now expected and, in some cases, required to report on issues surrounding ESG to stakeholders. In relation to investment decisions, risk categories for companies which fail to adequately address ESG can lead to action from groups holding power outside of the organisation (including consumers and potential investors) and risks of non-compliance with future legislation and regulation soon to be introduced.

On 10 January 2024, the Government has suggested the new draft Reporting on Payment Practices and Performance (Amendment) Regulations 2024.

Under the current framework, eligible businesses that are in scope of the current reporting requirements must publish a bi-annual report establishing their payment practices for payment of supplier invoices, as well as data for the performance in paying invoices over the preceding year and submit the report to a government-hosted website for publication. These requirements were due to expire on 6 April 2024.

Amendments under the January 2024 Regulations maintain the current reporting requirements whilst compelling companies and LLPs to report additional information, including but not limited to:

  1. the total value of invoices paid;
  2. the percentage of payments that were paid in 30 days or fewer, between 31 and 60 days, and in 61 days or longer;
  3. the total value of payments and the percentage not made within the payment period; and
  4. the proportion of invoices that are disputed which result in payments being made outside the agreed payment terms.

The new regulations are expected to come into force on 5 April 2024 and will expire on 6 April 2031. If the approval is not granted, the current framework will be renewed.

There is a greater focus on companies using IOT, AI and other technologies within their factories and subsequently across the supply chain. Smart Assets, such as devices that can track and monitor shipments – communicating the location and other characteristics such as temperature via blockchain, will be increasingly developed.

Sustainability efforts will be more essential in 2024. Eco-friendly practices such as recyclable packaging, sustainable transportation methods, and responsibly sourcing of materials will be adopted more widely. These practices will reflect the consumer desire for more sustainable products and a greater concern for the environment.

Data is an increasingly valuable business asset. Throughout 2024 companies will streamline their operations and improved their offerings in a revamped strategic approach. Companies like John Deere, using a model of selling data from its sensor-laden farm equipment back to farmers and Mastercard Advisers using extensive transaction data to offer data driven insights to financial institutions will be increasingly democratizing AI driven analytics data. We can expect SMEs and new sectors to adopt these strategies in the year to come.

Advances in AI including neural networks, new ways of storing data and AI marketplaces  Navigating the AI Landscape of 2024: Trends, Predictions, and Possibilities | by Vincent Koc | Jan, 2024 | Towards Data Science

Introduced in 2022, the UK Plastic Packaging Tax applies a levy to plastic packaging materials that contain less than 30% recycled content. We may see another increase in the tax in April 2024.

If a business produces or uses packaging, or sells packaged goods, it may be classed as an “obligated producer” under packaging waste regulations.

An obligated producer is a business that:

  • handled 50 tonnes of packaging materials or packaging in the previous calendar year
  • has a turnover of more than £2 million a year (based on the last financial year’s accounts).

Businesses need to register as a packaging producer by 7 April every year.

The final text of the AI Act will likely be published in the Official Journal of the European Union at the beginning of 2024 and enter into force 20 days after publication. It will then be applicable after a grace period of two years. Some specific provisions will apply within six months, while the lighter rules on General Purpose AO Models e.g., Large Language models such as Chat GPT 4, will apply within 12 months.

Despite a potential uptick in inflationary pressure in the first quarter of 2024, headline inflation will fall much faster in 2024 than the Bank of England anticipated, getting close to its 2% target. This is largely owing to falls in global energy prices, though there remains considerable volatility.

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From 31st January 2024, the Online Safety Act has made the sharing of AI-generated intimate images without consent illegal. The Act has also brought in further changes around sharing and threatening to share intimate images without consent.

As part of the government’s renewed focus on tackling modern slavery, the following updates have been made to the modern slavery statement registry:

  • A one-off email notification to registered companies who have not uploaded a statement since the registry was launched.
    • Email reminders to registered companies every year to prompt them to submit their latest annual statement.
    • If companies have not yet uploaded their annual statement, they will first receive a reminder one month before the deadline.
  • A further reminder will be sent 2 weeks before the deadline and a final reminder one week prior to the deadline.
  • Changes to the statement summary pages and search pages to clearly show how many of the recommended sections a company has completed on the registry.

Businesses will need to be more aware of the risks of phishing, ransomware, and identity fraud as more threats from hackers will emerge. The EU’s NIS2 Directive improves and strengthens cybersecurity standards across Europe, meaning that businesses not in compliance may face heavy penalties. EU member states will have to transpose NIS2 into their national legislation by October 17, 2024.

With the approach of the November U.S Presidential Election, Deepfake ads will become the primary cause of election misinformation. This is due to the increased adoption of AI image-generation tools. We expect deepfake advertising will hit crisis levels this 2024 election season.

Thaler v Comptroller of Patents [20 Dec 2023] – The Supreme Court held that DABUS was not an inventor for the purposes of the Patents Act 1977 (“PA 1977”) and Dr Thaler therefore did not derive the right to secure the grant of the patents to himself through his ownership of DABUS. As a result, the Comptroller was right to find that the applications were deemed to be withdrawn.

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In May 2023 the Government confirmed plans to limit non-compete clauses, which seek to prevent an employee working in competition with the business for a period of time after they have left, to 3 months. However, the Government has not confirmed when this intended legislation will be drafted or come into effect.

The draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have been laid before parliament. The draft regulations propose to extend the period of special protection from redundancy for employees who are on maternity leave, adoption leave or shared parental leave such that those on such leave should be offered priority right of any suitable alternative employment available in a redundancy situation.

The Neonatal Care (Leave and Pay) Act 2023 has made provision for a right for parents whose babies spend time in neonatal care units to:

  • Statutory neonatal care leave of 1 to 12 weeks.
  • Neonatal care pay set at statutory rates.

The specific rules relating to neonatal care and pay are due to be clarified in future statutory instruments, with the new neonatal leave and pay entitlements expected to be delivered in April 2025.

From 22 January 2024, the civil penalty for employers who employ illegal workers will rise to £45,000 per worker (if there are no previous breaches in the last 3 years) and £60,000 per worker for repeated breaches. The increases constitute a tripling of the fine.

The Flexible Working (Amendment) Regulations 2023 have been laid before parliament and are due to come into force 6 April 2024. The Regulations remove the requirement that an employee must have 26 week’s service in order to be able to make a request for flexible working. The right to request flexible working will become a Day One right.

From 1 April 2024 the National Living Wage (NLW) will increase to £11.44 for workers in the UK. In addition, the National Living Wage will now be applicable to workers aged 21 and over, where previously it was only applicable to those aged 23 years and over.

The National Minimum Wage (NMW) will also be increased for younger workers as below:

  • 18 – 20: £8.60
  • 16 – 17 and apprentices: £6.40

The draft Carer’s Leave Regulations 2024 have been laid before parliament and are due to come into effect on 6 April 2024. The regulations make provision for a statutory right to one week’s unpaid leave per year for employee’s providing or arranging care for a dependant with long-term care need. There is no minimum service requirement to qualify.

The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force in September 2024. This will provide workers and agency workers the right to request a predictable working pattern in terms of hours, working days, start and finish times or periods of engagement. It is expected that the minimum service requirement to access the right will be 26 weeks.

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force circa October 2024. This will:

  • Introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees.
  • Enable employment tribunals to increase awards against employers by up to 25% where employers are found to have breached the new duty.

The Supreme Court decision in Lifestyle Equities v Amazon concerning Amazon’s liability for trade mark infringement relating to infringing goods being sold on Amazon.com has recently been handed down.

The Supreme Court unanimously dismissed Amazon’s appeal of the Court of Appeal’s decision which placed the burden on the marketplace operators to monitor and address purported infringement issues. Ultimately, the Supreme Court confirmed that Amazon targeted consumers in the UK by displaying the USA goods on its USA website and by making them available for shipment to the UK, which in turn infringed the UK/EU Marks. The decisions are useful to determine what and when such operators are liable for trade mark infringement.

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There are ever-increasing judgments and decisions where brand-owners are taking action against supermarkets, like Aldi and Lidl, offering for sale lower priced own branded ‘lookalike’ products. In the past year alone, for instance, we encountered the judgments in Thatchers Cider Company Limited v Aldi Stores Limited [2024] EWHC 88 (IPEC), Lidl v Tesco [2023] EWHC 873 (Ch) and [2024] EWCA Civ 262, Marks and Spencer plc v Aldi Stores Ltd [2023] EWHC 178 (IPEC), to name a few. In the more recent cases, there has been a mixed reliance between trade mark infringement, passing off and registered design right infringement claims.

We expect to see more in this activity in 2024. It will be interesting to see the pattern of the claims made, particularly if the increasing reliance on unfair advantage claims following the decision in Lidl, and whether the court stick by their recent approach in Thatchers. In Thatchers, notwithstanding finding that Aldi using Thatchers’ product as a ‘benchmark’ for its own ‘new’ products and asking a design team for a hybrid of its own product with Thatchers’, there was no passing off or trade mark infringement. This rested largely on Aldi being found not to have the intention to take unfair advantage of Thatchers’ reputation and that there was no identifiable detriment; therefore suggesting the court still upholds its historic approach that the mere lookalike being named something different is proving enough to bypass infringement.

As to whether or not Thatchers appeal the aforementioned judgment is awaited.

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We are still awaiting the outcome of the Sky v Skykick appeal where the Supreme Court will decide whether filing broad trade mark specifications can amount to bad faith. The judgment will also evidence whether UK law will have much divergence to EU law post-Brexit.

Bad faith following Sky v Skykick was recently considered in the judgment in Lidl v Tesco. In the latter decision, the Court of Appeal upheld the High Court’s finding that Lidl’s wordless trade mark registrations were filed in bad faith.

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Continuing clarity by way of an increasing amount of decisions on NFTs, the metaverse and virtual goods is likely to continue in 2024.

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The Act introduced various relevant measures for brand owners encountering issues with third parties damaging their intellectual property rights. There will be a gradual implementation of the changes introduced by the Act, which will begin in March 2024.

Measures include, for instance:

  • introducing increased verification measures for company directors, people with significant control and others who act on behalf of companies;
  • improving the reliability and accuracy of information on the Companies House register (such as addresses and identification information); and
  • increasing Companies House’s investigation and enforcement powers

The decision in AXA Wholesale Trading v AXA [2023] EWHC 1339 (Ch) is a prime example of third party recently being found to be stepping on the rights of an established brand (here, AXA). It will be interesting to see whether the new legislation and measures will be enough to deter third parties from overstepping the relevant boundaries when it comes to intellectual property law.

SkyKick UK Ltd and another (Appellants) v Sky Ltd and others (Respondents)- bad faith will continue to be on the agenda in 2024. The Supreme Court will have to decide whether filing broad trade mark specifications can amount to bad faith.

Thatchers Cider Company Limited v Aldi Stores Limited [2024] EWHC 88 (IPEC) – Find out more here: Retail Reduced – January 2024 | Foot Anstey

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