Beyond My Jurisdiction

November 12, 2009

I was very pleased to see that there is a new Irish SCL sub-group on LinkedIn. I imagine that it may grow into something greater, perhaps rivalling the Scottish Society for Computers and Law (whose meetings continue to cover such intriguing issues). Certainly my impression from the last SCL Conference was that there were a goodly number of Irish attendees, although I admit my survey was conducted within only a few feet of the bar and may thus be somewhat unreliable. More reliably (and eschewing the stereotypes), I know the magazine has been enriched by a number of contributions from Ireland, especially over the last few months, so I know there are many interested IT lawyers out there.

I joined the Irish SCL as soon as I knew about it, mainly so that I could keep up to date with developments there – and partly because I am Irish on my father’s side. At least, my father claimed to be distantly related to Irish kings – but then, strangely, all our distant relations were said to be of royal blood, from one country or another, even though the less distant ones all worked in cotton mills. The wildest claim from my mother’s side was that we were distantly connected to a former mayor of Preston – a claim so woefully lacking in romance as to be almost certainly true.

But I appreciate that this is not Genes Reunited. The new group, and its potential, made me wonder about the special issues that face those practising IT law in smaller jurisdictions near to England. Perhaps we can make coverage of such an issue a focus of a future {i}Computers & Law{/i}?

Of course, jurisdictional issues affect all IT lawyers, even those in the USA (notwithstanding a tendency to cite the DMCA as though it applied everywhere from Alaska to Zanzibar). My guess though is that the Irish and the Scots have to be especially aware.

I begin by declaring my ignorance: I know little or nothing about Irish law and only a smidgeon more about the law in Scotland. But frequent readers of these posts will know that ignorance won’t stop me from offering a view.

While most areas of Irish IT law, such as data protection, are theoretically entirely free of English influence, many are influenced by it indirectly, for example by dint of the frequent references to English cases in Irish court judgments, the continuing high level of trade across the Irish Sea and the base of law on which Irish law is built. Moreover, the flourishing IT industry in Ireland has some of its roots in being an alternative low-cost base for US-based enterprises that seek to cover the UK and Ireland (and sometimes the rest of Europe) from one centre – that must influence contracts etc. Given all that, I suspect the Irish IT lawyer has to have one eye on New York and beyond, one on Brussels, one on Dublin and one on London – and even that neglects Edinburgh. I assume they all wear glasses.

Scotland’s position is obviously very different but one could make an argument for it being even trickier there. After all, elements of what we regard as IT law have been drafted with England in mind and then implanted (with modifications that one hopes are appropriate) on a legal system that has not got all that much in common with the English one. If Scotland achieves independence in my lifetime (and I think that quite likely – even though I am not feeling too well today), I expect to see the game become very complicated indeed. I wonder if the cost of redrafting the relevant laws has been fully assessed.

I would like to hear from potential authors in Ireland and Scotland on this issue of jurisdictional awareness. Do you feel that you need a special alertness or is that an England-centric assumption on my part? I would also love to hear from IT lawyers in the smaller jurisdictions such as Guernsey and the Isle of Man as to how they cope.