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​Testing the Boundaries

Although some regulators are easing rules to help businesses through the pandemic, legal experts warn companies against pushing the limits of what's allowable. 

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​The outbreak of COVID-19 has forced regulators in the U.S. and around the world to focus on the immediate impacts that the pandemic is having on companies, markets, and consumers. And while some watchdogs have said they may relax some rules or reduce scrutiny to help businesses operate more smoothly, experts warn it does not mean companies should loosen their internal controls. Nor should they take advantage of the situation by engaging in questionable, or even illegal, practices in the hope that authorities have less appetite — or means — to investigate and enforce the rules. As companies face temptation and risk noncompliance, internal audit has a strong role to play in helping them adhere to the rules.

Business as Usual

"Companies are still liable for compliance failures," says Hermès Marangos, partner at U.K. law firm Signature Law. "The virus emergency does not postpone or modify the law — there are no exemptions unless so provided by the legislation itself. Despite this, there are already individuals and entities trying to profiteer, behave unethically and contrary to laws and regulations in many instances," he says.

One area of corporate activity that has seen a relaxation of some rules is competition law. To enable the supply of key medicines, health-care equipment, food stuffs, and other urgent goods, anti-trust regulators have allowed competitors to work together — albeit in very specific and limited circumstances. In some regions, such as Europe, companies can even apply for "comfort letters" to gain increased assurance from the regulator as to what practices may be allowable under these exceptional circumstances, and for how long.  But lawyers warn companies against thinking that such arrangements are the "new normal," or that a relaxation of the rules in one area means that closer cooperation in other areas of business has been tacitly allowed.

Some companies also risk misinterpreting signals from regulatory agencies that enforcement may be pared down. They may assume that watchdogs will focus their resources on tackling companies committing the worst abuses or causing harm to the biggest number of consumers, rather than target organizations generally that have failed to comply. For example, in Europe — which has probably the toughest and most punitive data protection laws in the world under the General Data Protection Regulation — several data protection authorities have said they will naturally be drawn to investigating the "worst offenders."

But lawyers point out that this does not mean companies have been given any special dispensation not to follow the rules as normal. It simply means that the regulators have prioritized their resources.   

"As regards data privacy and enforcement, it is business as usual," says Sarah Pearce, privacy and cybersecurity partner at international law firm Paul Hastings. "No dispensations are being made under current circumstances. Most data regulators have said data protection principles still apply and should be adhered to, so businesses should certainly not view COVID-19 as an excuse for noncompliance."

Companies risk noncompliance by misinterpreting any sign of rules easing — or they may even assume a relaxation simply due to the pandemic. "While there may be some delayed reaction in terms of enforcement by certain regulators due to limited resources during this time, that is not to say there won't be enforcement later down the line," Pearce says. 

Penalties Still Apply

Experts also warn against assuming that penalties will be reduced because firms are under financial pressure. Michael Ruck, partner at U.K. law firm TLT, says that although regulators are redeploying their resources during the response to coronavirus, resulting in a reduction in the number or progress of investigations, the top-level amount of fines or penalties imposed will not be relaxed. 

"In periods where it is difficult to trade or where profit is hard to come by, there are inevitably instances of a small number of corporates or individuals being increasingly willing to stretch the interpretation of regulatory requirements — sometimes beyond their breaking point," Ruck says. "A perceived relaxation of regulatory intervention may encourage such behavior, but those that are tempted should beware."

While regulators may have discretion to reduce penalties in circumstances where incidents of accidental or low-level noncompliance occur, experts still warn that it will always be the authority that calls the shots.

"Regulators understand that the crisis is putting pressure on firms meeting their day to day obligations and are likely to be reasonable with firms that are making a reasonable effort to comply with regulations in a trying times," says Ian Thomas, regulatory solutions specialist at Quorsus, a financial services consulting firm. "That said, the keywords here are 'reasonable' and 'comply.' Cash crisis or not, the regulators are unlikely to hesitate to issue fines for serious breaches or offences — for example, those financial services firms that put client money at risk." 

An Essential Resource

Due to fears that organizations might choose to sail close to the wind if they feel that regulators might allow it, several experts believe that internal audit has a strong role to play in ensuring their organizations follow the usual strict codes of compliance.  

Camilla Winlo, director at international data protection and privacy consultancy DQM GRC, says that "it's good to see regulators taking a pragmatic view of enforcement." But she warns that organizations still need to be mindful of the need for regulatory compliance. 

"Internal audit functions need to be particularly aware of the need to carry out risk assessments and policy and process gap analyses to identify where risks have been introduced and ensure that their organizations come back within their risk appetites as quickly as possible," she says.

Nicola Howell, senior compliance and privacy attorney at commercial data and analytics firm Dun & Bradstreet, agrees that there should be no "let up" in following the rules. "Internal audit teams should not be complacent about enforcement and should proceed with upholding the policies their organizations had in place before COVID-19 took hold," she says. "While justifiable allowances may be made, any significant departure from legal requirements or previous company policy could significantly backfire on a business."

Neil Hodge
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About the Author

 

 

Neil HodgeNeil Hodge<p>​Neil Hodge is a freelance journalist based in Nottingham, U.K.</p>https://iaonline.theiia.org/authors/Pages/Neil-Hodge.aspx

 

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