Editorial August/September 2018

August 10, 2018


This is my penultimate issue of Computers & Law. It seemed time to begin to reflect on some of
the trends and changes that I have seen in nearly 25 years of working on the
magazine. Since the great shift from tech hints for lawyers to tech law issues,
one trend stands out and is exemplified in this issue: where once there was a
dearth of case law, there is now an awful lot.

I recall a time when any ruling on any even vaguely
computer-related issue was the cause of great excitement. I lost count of the
number of times St Albans was
analysed – I was always surprised that we didn’t hold our Annual Conference
there – though the software as goods issue was never entirely satisfactorily
resolved (as is mentioned in Ken Moon’s article on p 26). Any High Court
judgment was covered, no matter how mundane, if any of the magic words were
mentioned in the judgment. Now, we have so many tech-related court judgments
that I cannot even find space for them all to be reported and analysed in these
pages once. (Our Cases Update has had to be shifted to the epub version as a
‘bonus track’.)

Some of that shift is easily explained. Tech has wormed its
way into almost every form of commercial transaction and many a personal
interaction too. The tentacles of data protection have stretched beyond
anything we could ever have imagined 20 years ago; indeed there are times when
data protection issues explode from the body of an unsuspecting dispute like
the alien from John Hurt.

It follows that many disputes will have a tech element and there
will be a tech lawyer not far behind. Nobody will be surprised to discover that
a large number of those tech law disputes turn on simple failures to draft sensibly
or either the supplier or customer ignoring the contract and there are always
some acting in bad faith. To that extent, tech law disputes are like all
others. One of the things that marks them out as different and keeps litigation
tech lawyers in champagne is that they often nudge against elements of the law
that have had no previous judicial interpretation.

There must come a point where that ceases to be true and
every provision of every tech-focused directive and every statute has been
interpreted to the nth degree. But, fortunately for my successor and the SCL
membership, we may have humans living on Mars before that and the magazine will
be edited by robots.

Wild West

One trend that I thought was on the wane was that of
comparing the Internet to the Wild West. The implication being that no law
constrained activities on it. So I was shocked, and not a little disappointed,
to see the interim report of the House of Commons Digital, Culture, Media and
Sport Committee refer to a statement of the Information Commissioner in which
she described herself as ‘a sheriff in the wild west of the internet’.

I repressed the urge to shout that there is lots of law
regulating the Internet and that surely the Information Commissioner should
know better than to make the comparison that appears in 87% of articles on the
Internet – a statistic verified by Alex Jones of Infowars fame. I paused to
consider whether the comparison, which I normally swat away contemptously, had
any validity.

The flaw in the comparison starts with our facile
assumptions about the Wild West. As some historians state the American West in
the nineteenth century was much more peaceful than the very same cities are
today and it may well be that the Wild West was not a very violent place at
all. What was different was that most law enforcement was informal and

That’s one reason that thinking of oneself as a sheriff of
the Internet is flawed. Law enforcement on the Internet has to be backed up by
legal might and the prospect of monetary penalties and, crucially,
imprisonment. But the main focus has to involve a lot more than riding into the
darker recesses of the Internet on a white horse and taking out the bad guys –
I am not sure how you’d get a white horse from Wilmslow to a basement in the
Ukraine anyway. The cost of wide-ranging enforcement across the Internet is
beyond the resources of the ICO, that’s for sure; it is struggling to enforce
in its own backyard.

Unless we want a limited version of the Internet like that
sought by the Chinese government, we need much wider involvement from the main
players and the public for the Internet to lose its ‘Wild West’ tag. While there
really are some things that almost everyone can agree on as being good and some
behaviour that almost everyone can see is unacceptable, that is not enough. The
real reason the Wild West was never all that wild for long and was attracted
towards law and order was that an orderly environment was in the economic
interests of almost all – and certainly in the economic interests of those with
most power.

You may note that the essay which won the SCL Student Essay
Prize for 2018 for Alvin Cheung (see p 35) was on the set topic ‘Are state
legislation and case law, or Internet Service Provider action, more important
to the enforcement of rules on Internet users?’ I agree with Alvin:– the true
answer to that question, like many another ‘either/or dilemmas, is ‘Yes’.