Predictions Preview

November 13, 2008

From Kit Burden, Partner at DLA Piper UK LLP and SCL Trustee

2009 looks set to be a difficult year for many an IT department and IT/outsourcing supplier. Undoubtedly it will be a year when cost will be king, and the winners (such as they are) will be those who are best placed to play this card. So, step forward the offshore service providers in India and beyond (for whom profits may be down, but they will still be healthy), open source software and services vendors, and the purveyors of more flexible and lower cost Software as a Service offerings. What will be interesting to track will be whether there is any change in tack by customers in the procurement and contracting process (ie to lighten the load in terms of the length of the process or the types of clauses being sought) in return for lower costs.

From Clive Davies, Senior Counsel, Government Business Unit, Fujitsu and SCL Trustee

The economic and financial crisis coupled with global warming will finally convince all organisations that morning and evening rush hours are a thing of the past. Flexible working using the vast array of technology at our fingertips or a mouse click away enable us to work from home or at our clients’ locations – from anywhere in fact where the work justifies the need rather than a lemming like rush each day to crowded offices buildings. The industrial revolution saw a move from the fields to factories. This will finally be reversed as the prejudice against home working is laid to rest.”

From Ian De Freitas Partner at Berwin Leighton Paisner LLP

2009 will see a number of cases testing the law of publication of private information over the Internet. Over the last eight years we have seen the development of a law of privacy relating to material published in print, but little in the way of reported cases relating to internet publication of private information. The Max Mosley case opened the door to consideration of Internet publication (I expect the decision to refuse to grant an interim injunction to stop publication over the Internet to be tested and over-ruled in a subsequent case). Now we are likely to see cases testing when the English court will be prepared to take jurisdiction over material posted to the internet from overseas. Will forum shopping in privacy cases begin to rival that in defamation claims? Watch this space. 

From Professor Lilian Edwards, Professor of Internet Law at th University of Sheffield

I’d predict that in the wake of the credit crunch and the contraction of  the financial sector, a very few institutions will make cuts on security spending, which will lead to disastrous leakages of personal data, leading to yet more confusion and insecurity in the consumer market, and  the erosion of trust in e-government.

Phishing will continue to skyrocket in this maelstrom of confusion over mergers, failures, liquidations etc, and banks will start to become more  and more reluctant to pay out on phishing losses as a matter of course. The Government may then be forced to consider some of the ignored  provisions of the House of Lords personal internet security report, such  as explicit liability for phishing losses on banks just as on credit card issuers, or even to seek an industry sector norm of two-factor  identification.

Obama will become the darling of Hollywood, and contrary to what lefty liberals might have hoped, IP maximalism will accelerate not reduce.

From Beverley Flynn, Partner in the Commercial and IT Sector Group at
Regulatory and compliance issues will become increasingly significant for the compliance departments of businesses and in-house legal departments. Following the heady years of acquisitions, time can now be invested into the bedding down and streamlining of businesses acquired. In particular, e-mail monitoring/computer use for social and work purposes and data protection compliance will gain prominence, particularly if the ICO gets its increased powers of enforcement. Given the large numbers of high profile data losses, businesses will also be encouraged by the regulators to reduce the risk of and look at the prevention of data loss.

There will be proliferation in the use of data access requests. Businesses and individuals will become more adept and knowledgeable at accessing data by use of tools such as making of Freedom of Information Act requests and Data Subject Access requests. The number of these requests will increase rapidly as businesses realise these can arm them with a commercial advantage and cutting-edge when bidding for work and dealing with competitors. 

From Paul Gershlick, Associate at Mathew Arnold & Baldwin

I expect two topical themes to continue to take hold.

First, the impact of the downturn on IT.  For too long, IT has just been seen within many businesses as occupying a certain percentage of their budget, with a deference to the IT department to prioritise those IT projects which they most wish to see implemented.  2009 will see a change as many businesses move further down the line of ‘zero-based budgeting’.  Since many businesses are finding it harder to grow their top line, the way to increase their profits will be to reduce costs.  IT is a major cost that will come under attack.  With times getting tougher and it becoming harder to justify IT spend based on its impact on revenue growth, the software that directly results in saving costs will be the sort that does well in 2009.
Secondly, I envisage continued growth in the protection of personal data and privacy.  In view of the continuing series of high-profile data security breaches in the public and the private sectors as reported at, 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.  In addition, I expect the continued development of celebrities’ right to privacy, with some interesting cross-border twists as people try to stop the publication of material about them on the Internet.”

From Simon Morrisey, Partner, Media Brands & Technoogy, Lewis Silkin

1. We will continue to see a further increase in the supply of technology services by companies whose core business is not technology, ie companies supplying services within the marcomms and media industries. Such companies will struggle to manage these projects as internal resource will not be adequate to meet supply and service demands which in turn will mean an increasing reliance on sub-contracting. 
2. The old financial model of fixed fees, time and materials (or a combination of the two) will be eroded by the increasing realisation by suppliers of bespoke systems that such remuneration does not adequately compensate for technological deliverables that have a wider utility (and therefore value) beyond that for the project and client for which they are created. This will lead to more complex remuneration and licensing structures with customers and suppliers entering into collaboration and revenue sharing agreements.

From Jeremy Phillips, inter alia consultant at Olswang, Professor at UCL and co-blogmeister of IPKat

A boom in internet-related IP infringement litigation, as the increasingly bored, frustrated and IT-savvy unemployed sector pits its wits against increasingly vigilant, organised and litigation-oriented rights owners.

Unnamed minor civil servants in the UK to lose ten times as many personal records as there are residents in the UK.

Action and reaction are equal and opposite, so no change in the war between pro- and anti-software patent lobbies.

From Joe Reevy, Director, Best Practice Online

I predict that 2009 will be the year when mid-tier firms stop talking about seeking value for money with their IT investments and actually start doing it. By this I mean they:
(a) start making sure they have the right sort of information to make sensible decisions – a huge weakness of most practice management systems; and
(b) decide that those partners who brag that ‘I don’t even know how to turn my PC on’ are an expensive luxury they can afford to do without.
I also suspect it is a year that IT problems will be one of the main reasons (although not by any means the only one) that they will start to regret being stampeded into merging with another firm.
Lastly, I hope it is the year that the majority of firms realise that using IT to outsource ‘non-law’ functions (such as marketing) is a complete no-brainer.

From Peter Sommer, Visiting Professor at the London School of Economics and Visiting Senior Research Fellow at the Open University

Prediction 1:  Criminal Law/Interception

Home Office legislators and policy-makers will realise that the RIPA distinctions between traffic data and content are impossible to make in most Internet applications.  In effect the entire data-stream will have to be collected and the material beyond the scope of the warrant thrown away.  But that process may itself involve breach of RIPA. This will lead to a wholesale re-think of interception warrants, including the appropriateness of involving the Home Secretary in a quasi-judicial role in granting  the most intrusive warrants.

Prediction 2:   Problems of E-Disclosure

As e-disclosure increasingly uses the forensic procedures of copying entire hard-disks including deleted material, there will be enormous challenges when one party wishes to redact material on the basis that it  is privileged,  confidential, or outside the scope of Standard  Disclosure.  In forensic disk copies all the material is inextricably linked. Judges will struggle to arbitrate as competing experts suggest remedies and counsel seek advantage for their clients. 

From Andrew Tibber, Associate at Burges Salmon LLP

Given that recession is now squeezing profits even harder, and after the recent PR and court successes of the games industry in taking action against illegal file-sharing, my prediction is that the music industry will follow suit, making increased use of Norwich Pharmacal orders and copyright infringement proceedings to crack down on infringers.

From John Yates, Partner at Beachcrofts LLP

The end of the NHS National Programme for IT and a return to local IT procurement in the NHS

The last few years has seen a steady erosion of the NHS National Programme for IT (NPfIT) : Fujitsu’s recent contract termination in the South, Accenture’s withdrawal from North East and East of England, the deployment freeze in London cluster, and the new framework for additional supply capability and capacity (ASCC).  As the Department of Health loosens its vice-like grip over procurement of IT systems and services, freedom of choice is flowing back to NHS trusts. But have we not been here before? When the regional computer centres were privatised in the late 80s, trusts spent more than a decade creating islands of legacy systems and data that NPfIT was designed to fix. Sounds like Back to the Future…