Going Backwards and Forwards

December 11, 2017

From Roger Bickerstaff, Partner at Bird &
Bird and SCL Fellow

Looking back at my predictions from 10 years ago it
is pleasing that my predictions for 2007 on the increasing use of the open
source software in the mainstream business environment and the increasing
virtualisation of Tech solutions has occurred in practice. That may be pleasing
but it is galling that I did not pick-up at the time on the Tech everywhere/all
the time phenomenon. I’m writing these predictions on an airplane journey and
virtually everyone awake on the plane is focussed on some form of Tech device
of one sort or another. I didn’t see that coming.  

Looking forward over the next year and beyond, the
implications of the increasing combination of Tech everywhere/all the time and
artificial intelligence (in its various guises) will be profound on all of us
in ways that are equally hard to predict. Many of these developments will be
beneficial. From a personal perspective, as I get older and increasingly
forgetful this is already less important as electronic aids provide access to
more or less every fact that I need to know. But the wider impact of automation
on society and the professions (including legal services) will be significant,
widespread and (I believe) rather faster than most people expect.

In the shorter-term, as lawyers we need to grapple
with the regulatory and risk/liability implications of the inherently
probabilistic nature of AI in a legal framework which remains essentially
deterministic. This is the everyday work of Tech lawyers – we deal continuously
with the legal implications of Technology developments. In the longer term, the
significance of AI means that, as Tech lawyers who have a good understanding of
the issues, I believe we have a responsibility to consider the development of a
legal framework governing the wider economic and social implications of the
widespread use of AI. It could be a ‘brave new world’ but it could be

This makes the concerns of the predictions of 10
years ago seem narrow and parochial. They are. Whilst most of us continue to
deal with the narrower business/legal issues on a day-to-day basis, we also
need to think more broadly and take leadership on these issues.

These are exciting and challenging times for Tech

From Simon Deane-Johns, Consultant Solicitor at
Keystone Law and Chair of the SCL Editorial Advisory Board

Below is my SCL prediction for 2008, which has held
up pretty well. Personally, I took on a consulting role at Amazon.com early in
2008 and spent the next three years helping on various EU payment services
including getting their e-money authorization in Luxembourg. The next 18 months
were spent helping wrench WorldPay from RBS’s cold, dead hand (that business
then floated and has been sold again). Since 2012 I’ve been back in private
practice full-time, advising mainly on e-payments and P2P lending, which itself
became FCA-regulated in 2014 and is forecast to produce nearly £5bn in loans
for 2017. Small business finance has also opened up more widely, with those
recalcitrant banks having to be legally obliged to share their declined small
business loan applications with ‘designated finance platforms’ and provide
access to their credit data on SMEs. A competition investigation into the
markets for personal and business current accounts has exposed the banks to
further competition for payments functionality from non-banks. In 2018, the
second Payment Services Directive introduces the new ‘account information
services’ and ‘payment initiation services’ which involve non-bank access to
payment accounts via new Open Banking APIs. Meanwhile, the rise of ‘Big Data’,
algorithms and distributed ledger technology are also combining to continue the
relegation of retail banks into the back-office of Financial Services 3.0…

From Simon Deane-Johns, General Counsel and
Company Secretary of Zopa: www.zopa.com

[In 2008] Economic conditions will deteriorate
further in the financial services industry. Downward pressure on revenue and
the cost of funding, marketing and distributing financial services to consumers
and small businesses will force institutions to compete on innovation and
service quality. But not being organised to provide either, these incumbents
will fail to resist the entry of facilitators that have built trust and loyalty
by empowering consumers to get the product that is right for them personally in
other retail markets. Banks will be the back office service providers, not the
front, for Financial Services 2.0.

From Paul Gershlick, Partner at Veale Wasbrough
Vizards LLP

10 years ago, I predicted: ‘I expect there to be a
growing clamour for better tools available to the Information Commissioner’s
Office in three areas: unannounced audits, fines for serious data breaches, and
prison sentences for unauthorised obtaining of personal data’. 10 years on, we
are about to see the introduction of updated data protection laws, with the
potential for eye-watering fines really having grabbed the attention of all
sizes of organisation. This year, somewhat ironically, I make a boring
prediction that although the level of fines issued will increase from now, the
ICO will be slow to dish out the really huge ones that people are fearing,
particularly when organisations look to do things right but have slipped up.
However, the public naming and shaming will continue, and I also expect that we
will see a renewed call for criminal sanctions against individuals who
deliberately use personal data in ways that had not been intended.

From Andrew Haslam, the eDisclosure Project
Manager at Squire Patton Boggs

I am kindly reminded by Laurence Eastham that I’ve
been doing this for a decade, a reminder that came with a copy of my first ever
set of predictions. So how did I do over 10 years? Not too bad, though I have
the benefit of that timescale and not the 12 months they were originally aimed

In terms of eDisclosure, law firms have improved
their in-house expertise, by either employing more experts or (like Mishcon de
Reya and Evershed Sutherland) forming formal relationships with external
suppliers, to the benefit of all their lawyers, and not just the litigators. We
are starting to see the emergence of technologically aware lawyers, who are
using this technology in other areas than litigation, again to their advantage.
And it’s not just at the larger firms. Let’s hope it doesn’t take another
decade for us to see real progress here, though I am reminded that it often
takes a generation change for new approaches to be adopted (see how long it
took doctors to embrace the stethoscope for an example), so perhaps 20 years is
more realistic.

On the supplier front, there has been a steady
consolidation as the market matures and grows, to the point I doubt if there is
anyone left for the Americans to buy. Prices for the ‘mechanics’ of processing
and hosting have dropped and will continue to do so, as the focus of offerings
moves ever further into consultancy and ‘managed services’ (which can means
pretty much what the client wants it to mean). Also the range of services
offered by third parties has expanded so that most provide an ‘end-to-end’
service. The push to the cloud continues and MS Office 365 will continue on its
quiet path to world domination. Expect more services and consultancy around
this as everyone wakes up to the significant changes using O365 brings.

My 2018 prediction in this area is that the two
boxes on the left and right of the EDRM model, that of information governance
at the start and courtroom presentation at the end, will see the most changes.
Clients are increasingly understanding that having control of their own information
is a commercial necessity rather than a nice to have, a requirement that will
be accelerated once GDPR comes into force (and turbo-charged, once the first
fines are issued). In the courtroom we will see Opus 2’s domination of the area
with its Magnum product come under attack as rivals start to offer

Unsurprisingly I didn’t have any predictions on the
use of machine learning/AI in 2008, and I don’t want to add to the over-hype in
this area, except to say, real law firms are using these products to make real
changes and obtain real efficiencies. This trend will continue and the gap
between those that are doing it, and those who are (talking about a pilot, to
evaluate the concept, or thinking about what the technologies are, and how they
might be, via a controlled test, employed), not doing anything; will increase.

Back in 2008, I predicted that ‘There will be a
Case Management Conference where combative and hostile litigation lawyers,
trained from birth to argue over anything and everything, will indeed have
heeded CPR, r 31.7 and have cooperated on electronic disclosure’. Sadly that
one has had a few sightings, but not enough, to the point that we are talking
about changing the rules to try to break us out of the impasse. My personal view
is that if judges imposed the current rules, we wouldn’t need to change
anything, but perhaps this is what is needed to drag us forwards.

Again, missing from my original post was anything
about England’s rugby team. We are very certainly going in the right direction,
so I’m not going to jinx progress by adding any expectations to those they have

notes that these are his personal opinions and are not the opinion or policy of
his employer.

From Professor Chris Marsden, Professor of
Internet and Media Law at the University of Sussex

When I first made predictions for Laurence and SCL
in 2009, I had just started a blog on the very niche subject of net neutrality
in Europe. That has now had close to a million views – showing that extremely elusive
debates can reach even more elusive but mass audiences. Revisiting allows some
perspective – and humble pie – eight years on.

Back then, I said: ‘2009 will be the year of
Obama’s reforms – both privacy and telecoms legislation is expected. It will not
entirely roll back Bush’s FCC do-nothing attitude, but it may be more radical
than many expect.’ In fact Obama let his Federal Communications Commission do
the job, and they got bogged down in net neutrality court cases, as will Ajit
Pai, Trump’s new FCC chair. Note that holistic omnibus privacy law was never
passed during Obama’s term and is now firmly off the table. I wrote about both
these issues in books on net neutrality and privacy in 2010 and 2017 – and the
glacial pace of US telecoms reform continues! Prediction: Ajit Pai abolishes
net neutrality at the 14 December FCC meeting, then the courts stay his action
in 2018. This net neutrality issue will run forever.

I also said: ‘On the ‘home’ front, European
legislators will pass the Electronic Communications package, and expect
vigorous action on social networks from the privacy and child protection
perspectives.’ Well, the package did pass as two Directives, followed in 2015
by the ‘Connected Continent’ reforms which became Regulation 2120/2015 and associated
e-privacy reforms, some of which are ongoing. The vigorous action on social
network regulation has not happened, despite urging from national and European
politicians in view of terrorist content, sexual abuse, fake news and the other
vile elements of human society manifested on the Internet. Facebook was
regulated by the Irish Data Protection Commissioner from 2012 (in response to
the US Federal Trade Commission and German pressure), but its regulation
remains relatively light touch. European regulators continue to reply more on
corporate social (ir)responsibility than hard law. If I had to predict, I would
estimate 2019/20 would be the date of hard law requiring ‘Notice and Action’
within one hour of complaints about illegal content online. If that sounds
farfetched, it is already the law in Thailand in 2017. Yes, I predicted it in
my Internet Co-regulation’ and ‘Regulating Code’ books of 2011 and 2013.

My final point was ‘[t]his may well converge with
the wider (co-)regulatory agenda for search engines and ISPs. Economic
recession will impact surprisingly little on these agendas.’ Here I again note
the relatively slow pace of legislative reform, with the glacial progress
towards the General Data Protection Regulation, finally in force in May 2018.
The European Commission record fine for Google is being appealed for 2018, but
it will have to accept some kind of co-regulation of its vertically integrated
advertising in time. When I stated ‘recession’ in 2009, little did I know we
have only groggily emerged in the last two years in Europe!

A final prediction, based on my predictions for
2017: Brexit will not really happen, at least not for IT companies. How can I
be sure? The Data Protection Bill 2018 will have to be precise in ensuring the
UK as a third country appears identical to the EU. The more controversial
intermediary liability cases recently were those of the European Court of Human
Rights in Luxembourg, which we will still follow even after hard Brexit, not
those of the Luxembourg court. We must follow European law slavishly even if we
no longer influence and shape it. Of course, as Orwell noted, it would be
better if the sane part of the British ‘family’ ran government instead of the
Brexiteers and I have not lost hope that the final offer will be so
unpalatable, not least to the Unionists in Northern Ireland, that the
government falls and we choose to stay in the EU. Crazier things have happened,
and still happen all night in the Lincoln Bedroom at the White House.

From Graham Smith, Partner at Bird & Bird

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.