Mark HerseyManaging Associate

Data, Privacy & Cyber

I advise on a range of data protection and commercial matters, although I have a particular specialism in helping brands, advertising agencies and ad-tech service providers navigate data privacy issues in respect of online advertising (including programmatic and custom audience advertising) and direct marketing activities, advising on complex data sharing arrangements, and commercial contracts that have a privacy focus.

I am an IAPP Certified Information Privacy Professional (Europe) and frequently deliver training and seminars to clients on the General Data Protection Regulation (GDPR) / Data Protection Act 2018 and the ePrivacy Directive / Privacy and Electronic Communications Regulations 2003 (PECR).

Examples of my recent experience include:

• Seconded part-time to an online publisher and provider of a full-range of ad-tech services that span the supply side to the demand side (demand side platform, ad exchange, and supply side platform). Advised on data protection impact assessments (DPIAs) and legitimate interest assessments (LIAs) for various processing activities, various commercial agreements with clients and partners, and strategy around collection of B2C marketing permissions.
• Advised a global fast-food chain on agreements relating to custom audience (Facebook) advertising and related updates to privacy policy.
• Advised a global cinema chain structuring its membership service offering to ensure compliance with direct marketing regulation and provided various other compliance advice. Drafted marketing permission statements, provided clearance services in respect of proposed marketing/service communications, advised on profiling data subjects for marketing purposes and drafted privacy and cookie policies and responses to data subject rights requests.
• Advised global media organisation in respect of cybersecurity / personal data breach affecting users of its online classified ads business. Assessed likelihood of harm to data subjects and drafted report to the Information Protection Commissioner’s Office (ICO).

Commercial & Technology

I regularly draft and negotiate a broad spread of other ‘routine’ commercial contracts, including agreements for the license of intellectual property rights, franchise arrangements, collaborations and partnerships, supply of goods and services, and distribution of goods.

Examples of our experience include:

• Drafted and negotiated agreement for an industry body in respect of its appointment of an exclusive supplier of industry-approved services, and provided advice in respect of cessation of agreement with outgoing supplier.
• Advised a joint venture comprising a consortium of online publishers on establishing various commercial arrangements relating to the joint venture’s programmatic advertising services, including the provision of services to other publishers and agreements with other vendors in the ad-tech ecosystem (e.g. exchange networks and demand side partners).
• Drafted and negotiated a data licence for UK mobile phone operator concerning the license and sale of aggregated and anonymised customer data to a global management consulting firm, which the consultancy firm uses to advise retail clients on shopping centre location and strategy.
• Represented a creative agency in respect of various master services agreements and services orders for advertising services to pharmaceutical clients.
• Advised on and negotiated agreement for a professional services firm’s receipt of a cyber-security Software as a Service (SaaS).

Brands & Intellectual Property

I have advised various clients on the registration of various rights, including trade marks and design rights and have conducted trade mark and domain name due diligence in relation to various corporate transactions. I have also provided advice in respect of an investor’s potential acquisition of royalties derived from music streaming.

Contentious experience includes acting for a cosmetic company in High Court trade mark litigation and for a vehicle manufacturer and a chain of upscale grocery stores in Company Names Tribunal proceedings.