Cyber Risks October
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2 Cyber Risks October
3 Why this emerging sector matters Justin Tivey Legal Director T: +44(0) E: justin.tivey The government estimates that the current cost of cyber-crime to UK businesses is 21bn a year. With the continuing rapid adoption of cloud computing technologies and rise in on-line attacks this is set to increase. Many businesses have an online presence through social media and have become publishers of content. In addition incidents arising from careless employees or paper records are equally damaging. Companies are increasingly concerned about how they deal with this liability and insurers are rising to the challenge by providing cover for cyber risks. Cyber risks give rise to problems concerning data protection, confidentiality, defamation and intellectual property rights as well as traditional liability issues. A denial of service attack, IT intrusion, loss of access to the Cloud or careless online posting could give rise to a range of issues often requiring immediate action to prevent further damage and to mitigate the consequences of problems already caused. Managing and responding to these emerging risks effectively requires a diverse set of skills, knowledge and experience all of which are offered by our multi-specialist Cyber Risks team. Support in managing cyber exposures We can assist Insurers and their Policyholders in all of the areas relevant to cyber risks. In particular: 1. assisting Insurers to understand the regulatory framework and contractual protection available to Policyholders - key to helping underwriters understand exposures and price risks 2. policy advice on how existing wordings might respond to cyber exposures and drafting wordings for bespoke policies 3. being part of the claim solution where there is a cyber-related event. Giving advice on policy response, advising Insured's how to react to hacking and data security breaches as well as resolving claims from third parties 4. review and audit of contracts and procedures to highlight exposures and providing training. Cyber Risks October
4 Our expertise Data protection We have a dedicated data protection team with extensive experience of advising on information security incidents and managing investigations by regulators such as the Information Commissioner. In our experience this expertise can be critical to ensure that risks are properly managed at an early stage and that appropriate advice is provided on the actions that should be taken. Employment Many data protection breaches emanate from current or former employees and our employment group has experience of advising in connection with the breach of confidentiality and employment issues which ensue. Information litigation Our expert litigators regularly defend organisations from online defamation allegations and deal with the mis-use of confidential information including obtaining injunctions for breach of confidence. Insurance Our insurance group has provided policy advice and claims defence services to the Insurance market for over 30 years. In a changing marketplace one priority remains unaltered, the need for the earliest possible cost effective resolution of claims. Our lawyers are energetic and pro-active developing effective solutions that meet the needs of insurer and insured clients. Our experience includes advising on claims and coverage concerning data protection and on-line defamation. Intellectual property Our intellectual property group is experienced in securing intellectual property rights and has particular experience in dealing with intellectual property issues in cyberspace including cybersquatting and the loss or corruption of intellectual property from cyber-attacks. Public relations advice and IT support To address the needs of clients and bring a true multi-disciplinary approach to problem solving we can involve our own support teams giving advice and assistance in managing communications with customers and the media or analysing systems to identify the source of attack and the technical solutions needed. In addition, for more significant and dedicated support we can involve external consultants in these areas with the required skills and resources to mitigate the impact of an incident. Technology contracts We have a dedicated Technology, Media and Telecommunications team with extensive experience in a full range of technology related contracts, outsourcing arrangements and high profile "cloud" deals. We understand the contractual frameworks that underlie this area. Our expertise is recognised in leading legal services directories. Cyber Risks October
5 Our track record A few examples of recent cases we have been involved in include advising and acting on behalf of: a national retailer after tens of thousands of customers' account information became corrupted during an IT upgrade by a negligent IT contractor. Data security was compromised and personal information was exposed on the internet. We advised our client on notifying its customers and how to put in place measures to avoid future reoccurrences. We also advised on recovering costs from the negligent contractor a large national surveyor on data protection, freedom of information and breach of privacy claims brought by litigants ensuring claims are defended properly while reputational harm and regulatory risk are minimised large public sector organisations in relation to serious protection data breaches. The security of data records was compromised. We advised the client on the possible level of harm to the data subjects and the client's obligations under the Data Protection Act. We assisted with the investigation of the security breach and preparation of the client's report to the ICO. As a result no further action was taken by the ICO a national retailer which was the victim of a cyber-attack by a rogue employee. Customer details were stolen from our client's IT systems and the employee contacted customers defaming the employer and other members of staff. We assisted our client in assessing the quality of its data control systems to be sure the data loss was not the result of a remote hack. We advised on the level of access afforded to employees to ensure it was appropriate under the Data Protection Act. We prepared a report to the ICO as a result of which further investigations by the ICO were dropped a leading on-line review site on managing its exposure to defamation claims. The client's site primarily comprised user generated content by both the public and paying subscribers. We advised the client on appropriate "notice and taken down" procedures to maximise potential defences to any defamation claim. We also advised on web site terms and conditions to place appropriate limits on user generated content. As a result when subsequently a defamation claim was brought it was defeated without the need for court proceedings an Insured fulfilment company who was contracted to produce and distribute communications on behalf of a building society. The Insured erroneously despatched several hundred communications to the wrong addresses. This meant personal information was received by the wrong recipients in breach of the Data Protection Act. We advised the Insured on managing its liability to the building society which resulted in a successful settlement one of the country's largest health and social care training providers dealing with the aftermath of a serious hacking incident, advising on issues relating to a criminal prosecution of the hacker and a civil claim against the hacker and the then incumbent IT provider. Advising on coverage under the provider's PI policy. Cyber Risks October
6 Our team The issues generated by cyber exposures and incidents stretch across traditional legal disciplines. Therefore teams across the firm are available to provide the advice and support that is most appropriate. Key contacts in relation to cyber risks support are as follows: Andrew Kimble Partner T: +44(0) E: andrew.kimble Data Protection and Confidentiality Andrew is a partner in the Technology, Media and Communications Team. He advises on all aspects of data protection, privacy and freedom of information work including client audits, complex outsourcing, international data transfer arrangements and data services projects. He also specialises in information technology including IT procurement and e-commerce. He advises the Interactive Media in Retail Group (the industry body for the online retail industry) on data protection and e- commerce matters and he is a member of the Society for Computers and the Law. Andrew has been actively involved through the Interactive Media in Retail Group in consultations at both a European and national level on the review of data protection legislation and codes of practice and guidance issued by the Information Commissioner. Julian Hamblin Partner T: +44(0) E: julian.hamblin Technology Contracts Julian is a partner in the Technology Media and Communications Team. He has specialised in information technology and intellectual property since He acts for major retailers and is well known for his experience in retail and financial services related IT systems. He represents a number of government bodies, retailers and financial services/insurance companies. The focus of his work is on development and licensing of computer software, procurement/outsourcing, and online services/e-commerce. Julian is a member of the Society for Computers and Law, The Intellectual Property Lawyers Organisation and an associate member of the Chartered Institute of Purchasing and Supply. Julian is recognised as a leader in the fields of information technology law and intellectual property law by Chambers Guide to the UK Legal Profession in which clients are quoted as saying he "gives the end product in the form of digestible, useful advice... depth of industry knowledge, especially in retail". Cyber Risks October
7 Justin Tivey Legal Director T: +44(0) E: justin.tivey Insurance Issues and Claims Justin is a legal director and advises across a range of policy coverage issues and defendant professional liability claims, including extensive experience of claims against insurance brokers, financial advisers, the technology sector and legal professionals. While familiar with litigation at all levels of the judicial system, Justin frequently uses direct negotiation or mediation to achieve the efficient resolution of claims. Justin is a regular writer of briefings and articles on developments in professional liability including recent cases affecting data handlers, technology professionals, and financial advisers as well as on insurance law and litigation procedures generally. Justin speaks regularly to clients and to professional audiences about topics of practical interest. Andy Parsons Managing Associate T: +44(0) E: andrew.parsons Technology Disputes & Breach Response Andrew is a senior associate in the dispute resolution team. He specialises in commercial disputes involving the supply of goods and services, IT/engineering projects, outsourcing arrangements and financial agreements. Andrew advises on corporate disputes regarding the breakdown of joint ventures, shareholder disagreements, director's duties and breach of warranty claims. He has expertise in managing disputes through a variety of forums including litigation, arbitration, expert determination and mediation. He also has a niche practice in contentious data protection matters. This includes advising on data transfer agreements, complaints by data subjects, enforcement action by the ICO and managing security breaches. Mark Pearce Partner T: +44(0) E: mark.pearce Intellectual Property Mark Pearce is a partner in the Intellectual Property Team and has specialised in intellectual property law for more than 20 years. His expertise covers both contentious and non-contentious intellectual property matters. On the contentious side he has experience of disputes relating to patent infringement and revocation, trade mark infringement and passing off, copyright and unregistered design right infringement and misuse of confidential information. Mark s non-contentious experience includes advising businesses on intellectual property strategies, acting on transactions involving the sale of substantial IP portfolios, patent licensing deals in a number of industries, trade mark licensing deals, joint development agreements (including complex multi-party arrangements) and contract research agreements. Cyber Risks October
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