Commercial Awareness Update 7th December 2018

1) CAMBRIDGE ANALYTICA FINE

Facebook has appealed against a fine imposed on it by the UK's data watchdog after the Cambridge Analytica scandal. The social network says that because the regulator found no evidence that UK users' personal data had been shared inappropriately, the £500,000 penalty was unjustified. Last month, the watchdog said Facebook's failure to make suitable checks on apps and developers amounted to a "serious breach of the law".

It has acknowledged the appeal.

This was the last day on which the US firm could challenge the Information Commissioner's ruling.

Analysis

Sir Humphrey, the civil servant in Yes Minister, described Facebook’s decision to appeal as "brave".

Amidst the barrage of accusations the social media firm has been recently subjected to, picking a fight with the UK regulator over an issue which was beginning to fade into the background seems reckless.

After all, the social media giant admits that it got a whole lot of things wrong in the Cambridge Analytica affair, in particular allowing the data of friends of people who took part in a personality quiz to be scraped.

But Facebook feels that the Information Commissioner's Office conducted a poor investigation, deciding that one million UK users had suffered harm and then finding that the researcher Dr Aleksandr Kogan did not pass their data on to Cambridge Analytica.

Some data protection experts think the company has a point.

Mark Zuckerberg and his company appear determined to fight back against what they see as a flawed process but the appeal is a gamble.

The stakes are also high for the Information Commissioner Elizabeth Denham. She made the unusual decision to go public with her intention to impose a fine before receiving representations from the company.

If Facebook's appeal succeeds, her authority as a regulator will be seriously undermined.


2) BREXIT: WITHDRAWAL

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The UK should be able to unilaterally cancel its withdrawal from the EU, according to a top European law officer.

The non-binding opinion was delivered by the European Court of Justice's advocate general.

A group of Scottish politicians has asked the court whether the UK can call off Brexit without the consent of other member states.

The Court of Justice (ECJ) will deliver its final ruling at a later date.

Analysis

While the advocate general's opinions are not binding, the court tends to follow them in the majority of its final rulings.

The anti-Brexit politicians and campaigners who have brought the case hope it will give MPs an extra option when considering whether to approve Mrs May's draft deal or not, because it could keep alive the prospect of calling off Brexit - potentially through another referendum.

The ECJ statement said the advocate general had proposed that the Court of Justice should "declare that Article 50 allows the unilateral revocation of the notification of the intention to withdraw from the EU".

It added: "That possibility continues to exist until such time as the withdrawal agreement is formally concluded."

The UK is due to leave the EU on 29 March next year, but the deal negotiated with the EU has to be backed by a majority MPs if it is to come into force.

Welcoming the advocate general's opinion, SNP MEP Alyn Smith, one of those who brought the case, said it showed that "we now have a roadmap out of the Brexit shambles", and that parliament was not necessarily facing a choice between accepting Mrs May's deal or leaving the EU with no deal.

He added: "There are other options, and we can stop the clock."

3) HUAWEI CFO ARRESTED

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Huawei’s chief financial officer has been arrested in Canada in a probe by the US into alleged violation of sanctions against Iran, reigniting tensions between Washington and Beijing just days after Donald Trump and Xi Jinping tried to resolve their trade conflict at the G20 summit.

Canadian officials on Wednesday said that the US was seeking to extradite Meng Wanzhou, the daughter of Ren Zhengfei, founder of the Chinese telecoms group, after her arrest on Saturday in Vancouver. Ms Meng, who became one of Huawei’s four deputy chairpersons this year, will face a bail hearing on Friday.

The arrest sparked an immediate response from Beijing, which urged the US and Canada to release Ms Meng. The Chinese embassy in Ottawa said that China “firmly opposes and strongly protests over such kind of actions which seriously harmed the human rights of the victim”.

Analysis

Her arrest, which comes after recent moves by western governments to curtail Huawei on security grounds, added to investor concerns over heightened trade tensions between Washington and Beijing.

In China, the benchmark CSI 300 index of stocks dropped 2.2 per cent while in Europe, key market indices were sharply lower. The Euro Stoxx 50 index was down 2.2 per cent in morning trading while the FTSE 100 was 2.7 per cent lower.

Futures market trading indicated that on Wall Street, the S&P 500 was expected to open about 1.7 per cent down and Nasdaq 2.2 per cent weaker.

Huawei has been in the sights of US security officials, and the latest move comes as the Trump administration takes an aggressive stance towards China. In a speech in October, Mike Pence, the US vice-president, put China on notice that Mr Trump was prepared to take a harder stance against Beijing than his predecessors.

4) TESCO EXECUTIVES ACQUITTED

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A high profile trial over a £250m accounting scandal brought by the Serious Fraud Office against two former Tesco executives collapsed dramatically after the two men were acquitted.

On Thursday, a jury at Southwark Crown Court was told that Chris Bush and John Scouler had been acquitted by the Criminal Court of Appeal after judges backed the ruling of the trial judge, Sir John Royce, that they had no case to answer. The prosecution case, which lasted two months, finished last week.

The SFO had appealed against his decision to the Criminal Court of Appeal. Sir John told the jury that the prosecution case had been “so weak” in certain areas it should not be left before the jury’s consideration.

Analysis

The collapse of the trial of the two former Tesco directors accused of false accounting will cause more embarrassment for the Serious Fraud Office (SFO) and also call into question an earlier deferred prosecution agreement (DPA) between the supermarket and the fraud-busting agency.

Alison Geary, counsel in the white collar defence team at international firm WilmerHale, said: ‘This throws into stark relief the very different considerations between concluding a court approved DPA with a company and prosecuting individual executives. It should not be assumed that the prosecution of individuals will inevitably follow the conclusion of a DPA.’

Maria Cronin, partner at Peters & Peters, said the acquittals are likely to cause companies to ’reconsider the potential advantages of DPAs’.

She added ‘It is notable, that, to date, the SFO has had little success in securing convictions against individuals following a DPA.’ ‘That the judge considered that the SFO’s case was unsupported by evidence is extremely concerning,’ Cronin said.

5) OPEC OUTPUT CUT

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Oil prices fell almost 5 per cent on Thursday to below $59 a barrel as Saudi Arabia signalled that producers were working towards a deal to cut output that could fall short of market expectations.

Khalid al-Falih, the kingdom’s energy minister, told reporters ahead of a meeting of oil ministers in Vienna that Opec and allies outside the cartel including Russia were still working towards a deal by Friday. But he said the preference for Saudi Arabia — Opec’s de facto leader — was for a “sufficient cut but not overly large” adding that 1m barrels a day between Opec and non-Opec countries “would be adequate”.

Analysis

At the June meeting of oil ministers, Saudi Arabia pledged to relax oil curbs that had been in place since January 2017, to compensate for a drop in Iranian exports as sanctions kicked in, taking its output above 11m b/d. But worries about a global economic slowdown that could hit oil demand and see the swelling of crude stockpiles again, has concerned big producer countries that rely on export revenues to fill government coffers.

Usama Kubo

Commercial Awareness Director