In the beginning of June, I spent three amazing days meeting incredible people at the Social Enterprise Days, in Utrecht. One of the people I met is Alicia Schalkwijk, a lawyer from Ashton Cloak, and she was there with an interest in what is new around the world. Now, I usually think lawyers are too lost in their own bubble to see what is going on around them, luckily I am very wrong! Alicia gave me a lot of insights that I had to share them with all the entrepreneurs at the Seats2meet ecosystem. She so kindly agreed to give me an interview on what entrepreneurs should be aware of new legislations and some other interesting trends on lawmaking.
Could you give a short intro about yourself?
I am Alicia Schalkwijk (31), a lawyer and founder of Ashton Cloak Legal Advice. We specialize in advising Start-ups and Grown-up companies. I have studied at Utrecht University and I myself am specialized in Intellectual Property and Health Law. I still live in Utrecht and our office is located here as well. In my spare time, I like to play tennis, meet with friends and being involved in a local political party.
A lot of innovation and disruption is happening. For you, what is the main challenge for lawmakers amidst this period of fast-paced changes?
New (digital) products and new fast-changing ways of (online) services and work environment, also ask for a different approach at legal level. Both in regards to the type of legal services and the way in which the Start-ups and Grown-ups of this time have other questions, wishes and needs.
Ashton Cloak Legal Advice goes along with these changes by providing flexible services, sustainability, and cutting-edge rates. We are experienced in these new markets. And in ‘new’ legal jurisdictions like, Privacy law, Media and Internet law, ICT law, Health law and Intellectual property law, besides our traditional legal jurisdictions as employment law and corporate law.
What are the new regulations that entrepreneurs should have their attention on when it comes to owning a company?
Two important changes are new laws concerning Privacy law and Employment law. As of May 2018, the same privacy rules apply throughout Europe. Each Member State may also choose to introduce stricter rules. Also, new laws about employment have entered into force. Complying with these new rules is essential, as explained in the next paragraphs.
It is estimated that by 2035 half of the working population will be freelancers. With that in mind, I already see a lot of changes in regulations. What do freelancers and/or people who want to become freelancers should know?
A freelancer is not regarded by law as an employee but as a contractor. Labor law is therefore not applicable, such as employment protection. And there are few legal requirements to fall back on. Therefore, it is important to let a good agreement between the freelancer and commissioning company draft by a lawyer. How to handle additional work for example. Who owns Intellectual Property rights? Who is liable in case of default? Furthermore, you do not want your relationship being considered as a ‘labour agreement’ afterwards. Which means that you could have to pay extra taxes or lose your right to self-employed rebates.
We also see tons of new technologies as blockchain. Are there already any talks about it in the legislation area? Does the same go for crypto currencies as Bitcoin and Ether?
LegalTech is on the rise. However, the Netherlands is still behind compared to, for example, the U.S. They have a legal artificially intelligent system called Ross, which can create legal documents.
After all, your business is unique. You do not provide products and/or services under the same conditions as your competitor. Therefore, you will need terms and conditions that are tailored to your business and provide the right protection.
These systems do not yet get to know your business as a real-life lawyer does, who can ask you the specific questions that will lead to custom work a computer is not yet able to do. A lawyer can explain how and when to use a contract. And can explain consequences if you should choose between options.
Also in resolving disputes LegalTech is on the rise. Until these systems will become self-learning and can create completely new contracts or statements, lawyers are still needed. If so, lawyers will get more time to explore complex issues where they can strive their creativity and expertise.
Next year the new privacy laws will start to be enforced. What does that mean for users?
The person whose personal data is processed gets stronger rights and more rights under the new privacy legislation.
For example, data like your telephone number, e-mail address and even Wi-Fi data, the information on your OV-chip card and video footage can be considered as personal data.
When a company processes your personal information, you have in principle the right for example to let your personal data be changed or deleted. The right to Data-portability is also introduced. Users are entitled to receive their personal information stored at companies, to store these themselves for personal (re)use or to pass this information to (an) other organization(s).
And what does it means for companies that work with user’s data?
To comply with the new rules, it is important that entrepreneurs and companies make timely changes.
For example, companies need to keep a record keeping insight into how personal data is processed. This task is assigned to the processor and the processing manager. The requirements for the Processor Agreement, to be concluded between the Processor and the Processing Manager, are greatly expanded. For example, there are requirements regarding the duration, type and purpose of data processing.
Further requirements are also laid down for inter alia security measures. And Privacy by Design and Privacy by Default is mandatory for companies that want to process personal data.
Do you work with particular personal data, as health data? Then there are additional requirements regarding the handling of personal data. And do not forget that an App for the smartphone, cloud services etc. also needs to fulfill all privacy requirements.
It is expected that the new rules will be strictly enforced. Penalties may be imposed up to a maximum of € 200,000 or 4% of the worldwide annual turnover.
Among others things a good Privacy Statement, Cookie Statement and Processor Agreement, made by a lawyer, will ensure that your business is well organized and high fines can be prevented.
Is there anything else you think that entrepreneurs and freelancers should know about the upcoming legislations?
Contract and conditions can these days easily be gained from the Internet or from generators. After all, your business is unique. You do not provide products and / or services under exactly the same conditions as your competitor. Therefore you should need terms and conditions that are tailored to your business so they can provide the right protection. This prevents you from being exposed to conflicts with your customer or buyer, if your terms or contracts deal with something different or less than you would have needed.
About Ashton Cloak Legal Advice
Ashton Cloak Legal advice is specialized in legal advice to Start-ups and Grown-up companies. Among other legal jurisdictions, we advise about Intellectual Property law, Health and Food law, Privacy law, Media and Internet law, ICT Law, Employment law and Corporate law.
We provide flexible services, reduced rates for Start-ups, for whom we created our Legal Custom Starters Package, we are transparent and pursuing to work on a sustainable and corporate social responsibility basis.
Our motto is therefore: ‘Our quality is in the advice, not in the marble’.
Alicia C.M. Schalkwijk, LLM
Corporate Lawyer Private Law and European Law
Member of NEVOA, Professional Association for Corporate Legal Consultants
Member of the ‘Association of Farma and Law’