FSA’S POWERS TO REQUIRE PRODUCTION OF DOCUMENTS – NEW COURT OF APPEAL JUDGMENT

February 25th, 2010 by Anya Proops

The Court of Appeal has today handed down an important decision on the nature and scope of the FSA’s powers to require production of documents under the Financial Services and Markets Act 2000 (FSMA), Financial Services Authority & Ors v Amro International & Ors [2010] EWCA Civ 123. The case involved a request made to the FSA by the United States Securities and Exchange Commission. The Commission had instituted proceedings in the United States alleging fraudulent and manipulative trading in the shares of a US company. Pursuant to a multilateral memorandum of understanding concerning the exchange of information (the Memorandum), the Commission sent to the FSA a letter requesting the FSA’s assistance in obtaining the production of documents from a London-based accounting firm (G) which acted for two companies implicated in the US litigation. In response to the request, the FSA appointed investigators under the FSMA and the investigators issued notices to G pursuant to s. 171 and/or s. 172 FSMA to produce the documents and information described in the Commission’s request. Overturning the judgment of the High Court, the Court of Appeal held that the FSA’s actions in appointing investigators and issuing the notices were lawful under the FSMA. In the course of its judgment, the Court of Appeal rejected arguments advanced by the respondents to the effect that: (a) the FSA had to verify the information provided by the Commission and the Commission’s need for documents prior to taking action under the FSMA; (b) the FSA’s actions were at odds with the terms of the Memorandum and (c) it had to be established that production of the documents was ‘necessary or expedient’ in all the circumstances. It held that: there was nothing in the statute which required the FSA to second-guess a foreign regulator as to its own laws and procedures or as to the genuineness or validity of its request for assistance; the question of whether to provide the requested assistance was to be determined under the FSMA and not the Memorandum; and the test to be applied in respect of the production of documents was that contained in s. 171(2), namely whether the investigator reasonably considered production to be relevant to the purposes of the investigation; the test contained in s. 171(2) was a relatively low hurdle which had been cleared on the facts of the case. The Court of Appeal recognized that the FSA’s actions might engage the Article 8 right to privacy and, hence, considerations of proportionality came into play. However, it concluded that the actions taken by the FSA were proportionate in all the circumstances.

LABOUR PARTY IN THE DOG-HOUSE OVER AUTOMATED CALLS

February 11th, 2010 by Anya Proops

The Commissioner has this week issued an enforcement notice to the Labour Party in response to its act of making unsolicited automated marketing calls without consent to almost half a million people. The calls were made in June 2009 and were designed to encourage people to vote in the European elections. The ICO held that, notwithstanding their inherently political nature, the actions taken by the Labour Party amounted to unlawful ‘direct marketing’ for the purposes of the Privacy and Electronic Communications Regulations 2003. The enforcement notice requires the Labour Party to desist from making further automated calls without the recipients’ consent. Breach of the notice will amount to a criminal offence and could lead to prosecution. This is not the first time that a political party has received an enforcement notice in response to making automated calls. Similar notices have previously been served on the Conservatives, the Scottish National Party and the Liberal Democrats. See further the Commissioner’s press release on this issue.

TRIBUNAL RULES – NEW CONSOLIDATED SIs

February 11th, 2010 by Anya Proops

For those of you who were struggling to piece together the various statutory instruments containing the new rules governing the operation of the Information Rights Tribunal, help is now at hand. Consolidated versions of the relevant SIs can now be found on the Tribunal’s website.

NEW FEATURES ON PANOPTICON

February 10th, 2010 by Timothy Pitt-Payne QC

We’ve had a few emails to let us know that the RSS feed was broken; we hope that we’ve now fixed the problem.  And at the same time we’ve introduced an option to subscribe to the blog by email – you should be able to see this at the left-hand side of the page.