Predictions 2018 – 17

December 17, 2017

From Graham Smith

The SCL has asked me to look back at the three predictions
that I made in 2009. So here goes.

The first prediction was that fundamental human
rights would play an ever greater part in online-related policy debates and

I’ll award myself 10/10 for that one. Pretty much every
policy debate or significant internet litigation is now conducted within a
fundamental rights framework, from SABAM v Scarlet (CJEU) to Ashby
Donald (ECtHR) and Delfi (ECtHR), site blocking injunctions
and surveillance and data retention challenges, not to mention the current
debate about intermediary liability. Forecast: no change.

Second, I suggested that there would be a continuing domestic and
international bloodbath over ISP and online intermediary liability
I said that unlike in the 1990s, when the policy debate was
slugged out between rights holders and ISPs alone, this time the digital user
community would be a significant force

The bloodbath turned out to be delayed. Every so often the
possibility of re-opening the intermediary liability provisions of the
ECommerce Directive was raised and then parked. The status quo was preserved in
an uneasy stasis. Now, however, the bloodbath has arrived. Intermediary
liability protections are under threat from many different directions. As
platforms wilt under political pressure, the digital user community is becoming
a louder voice in pointing out the importance for internet users of
intermediary liability protections. Forecast: more blood on the walls.

Last, I said in 2009 that with litigation creaking under the expense of
processing electronic documents, standard disclosure will be abolished for
cases valued under £1 million

Standard disclosure is still with us, albeit in non-personal
injury multi-track cases it is no longer the default option but one of a menu
of possibilities. Processing large volumes of electronic documents remains a
significant challenge, notwithstanding that techniques such as predictive
coding (computer assisted review) have been around for the best part of a decade.
Forecast: One day, perhaps.

Graham Smith is a Partner at Bird & Bird. His well respected
Cyberleagle blog is at