Safe harbor

For other uses, see Safe harbor (disambiguation).

The term safe harbor (safe harbour) has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.

Legal definition

A safe harbor is a provision of a statute or a regulation that reduces or eliminates a party's liability under the law, on the condition that the party performed its actions in good faith or in compliance with defined standards. Legislators may include safe-harbor provisions to protect legitimate or excusable violations, or to incentivize the adoption of desirable practices.

An example of safe harbor is performance of a Phase I Environmental Site Assessment by a property purchaser: thus effecting due diligence and a "safe harbor" outcome if future contamination is found caused by a prior owner.

Another example is regarding insider information laws. Broker-dealers are required to have in place Chinese walls (also called information barriers) that prevent the transmission of insider information from one department to another. Each broker-dealer firm is required to have its own barriers and to enforce them on its own. Thus, there is no safe harbor regarding this issue.

A third example can be found in the EU Data Protection Directive, which sets comparatively strict privacy protections for EU citizens. It prohibits European firms from transferring personal data to overseas jurisdictions with weaker privacy laws, but creates exceptions where the overseas recipients have voluntarily agreed to meet EU standards under the Directive's Safe Harbor Principles.

Broadcasting

Main article: Watershed (television)

In broadcasting, particularly in the United States of America, the term safe harbor can refer to the hours during which broadcasters may transmit material deemed indecent for children. This "safe harbor", enforced by the Federal Communications Commission, extends—legally—from 10 PM to 6 AM.

Commerce

• In the context of commercial takeovers, safe harbors function as a form of shark repellent used to thwart hostile takeovers. Under implementation of this provision, a target company will acquire a troublesome firm in order to raise the acquisition price and make acquisition by other parties economically unattractive.

• The Private Securities Litigation Reform Act of 1995 includes safe-harbor provisions to protect companies which make financial and investment forecasts in public markets.

• The United States Department of Commerce runs a certification program which it calls Safe Harbor and which aims to harmonize data privacy practices in trading between the United States of America and the stricter privacy controls of the European Union Directive 95/46/EC on the protection of personal data. For more information, see Safe Harbor Principles.

• The Public Health Service publishes a set of Safe Harbor rules within Title 42, Code of Federal Regulations, to preclude Life Science companies from withholding important medical information from the public for fear of being prosecuted for Medicare violations. It is illegal for a firm to advertise or promote a drug, biologic, or medical device for a purpose other than an indication approved by the Food and Drug Administration; recommending such off-label use for a product subject to reimbursement under Medicare or Medicaid constitutes felony fraud. Safe Harbor establishes rules defining when and how such information may be published (for example, medical journal reports of clinical trials) without the company running afoul of advertising and marketing restrictions.

Internet

• The Digital Millennium Copyright Act has notable safe-harbor provisions which protect Internet service providers from the consequences of their users' actions (Similarly the EU directive on electronic commerce provides a similar provision of "mere conduit" which while not exactly the same, serves much the same function as the DMCA safe harbor in this instance).
• The US Patent and Trademark Briefing on ISP Liability states that in order to be eligible for safe harbor the ISP must have adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.
• DigitalRights provides a service to copyright owners to monitor ISPs' compliance with their safe harbor eligibility.
• In 2012 the Pirate Party of the United States published (both in print and on-line) a book the title of which ironically referenced the concept (No Safe Harbor: Essays About Pirate Politics ISBN: 1468033999 ISBN-13: 978-1468033991).

Accounting

In accounting, the term safe harbor may refer to the method by which corporations would rather (typically) incur tax consequences than follow the precise requirements of their respective tax codes.

Research data de-identification

Sometimes a researcher will have data about human subjects of significance to other researchers and want to share that data. A common case is that hospitals collect large amounts of medical statistics on their patients and it would be useful for medical research for other entities to review that data. In this case, it would be unethical to reveal the identities of the people whose data would be shared, because those people have a right to privacy. In order to share the data, it must first be de-identified so that no particular person can be associated with their data set by anyone who sees the data.

The problem is that it is hard to determine what kind of data can identify a person. One model for determining what data cannot be shared is the United States' policy on protected health information, which gives a list of identifying data. If a researcher removes protected health information from a data set, then the term for that researcher's state is that the researcher is in a "safe harbor" for having taken reasonable action to protect the identities of those whose data the researchers collected.

See also

• Safe harbor in patent law
• The EU International Safe Harbor Privacy Principles
• No-action letter in US regulation
• Safe Harbor Certified Seafood

External links

• 2000/520/EC: Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council (Safe harbor principle)
• The Electronic Commerce (EC Directive) Regulations 2002- Section 17 "Mere Conduit"
• Safe Harbor Arrangement Official site

• Safe Harbour British Columbia Diversity Program