June 13, 2010

This issue has two striking features: the preponderance of case reports and analysis and the contributions to policy formation from SCL represented by the cost-sharing response and the first Society for Computers and Law Policy Document. 


What does it say about IT law that we can have no less than six articles devoted to case reports? It tells us the obvious – that there is now quite a lot of active litigation with an IT element (especially if you bear in mind that one of the articles I mentioned covers five separate judgments). Once any case with an IT element was dissected in the hope that its entrails would reveal some important truths, now IT judgments are becoming more like judgments in other fields – some are very interesting for their legal content, some shed light on practice and some just engender schadenfreude or give a frisson of recognition and relief. What that serves to emphasise is the facile point that IT has penetrated into such a wide range of commercial and social activities that disputes are highly likely to have an IT element. 

Look at some of the cases. Hotel bookings, insurance and VAT, news reporting, gambling and animal feed production are not activities that the general public would think of as IT-orientated but the reality is that IT pervades each of those activities. It can only be a matter of time before we have an IT case that allocates blame for the (alleged) discovery of a snail in a bottle of ginger beer. 

I would be genuinely interested to hear from SCL members as to whether case reporting is a function that they want from the magazine and web site. My e-mail address for comments is lseastham@aol.com

Contributing to Policy 

Recent developments, especially the passing into law of the Digital Economy Act 2010, have led to a number of consultation exercises. SCL has greatly improved its capacity to respond, aided by the sensible use of IT but relying principally on good old fashioned volunteering. Recent consultations have seen responses by SCL on cost-sharing in cases of digital copyright infringement, on the Cloud Industry Forum’s draft code of practice and the implementation of the power to impose custodial sentences for data protection breaches.

The latest innovation is represented in these pages by the first Society for Computers and Law Policy Document. That is a different animal from anything that I can previously recall – an in-depth look at the problem of how best to cope with the tensions between the music industry and ISPs in light of the prevalence of copyright infringement. As SCL Chair, Clive Davies has said in his foreword to the policy document, this is an ‘important contribution to the debate on solutions to the problem of unlawful file-sharing and its effect on copyright holders … SCL’s members represent a wide range of stakeholders in the IT industry and SCL cannot take a stance on exactly where the balancing point lies. But we do see it as a fundamental part of our functions to further debate in this area’. 

Although a long read, I commend the document; it’s worth investing some time in reading it properly. I would like to think that it will be read by government and Ofcom and will influence policy. But the internal timetable of the DEA 2010, requiring the publication of a code and its approval at EU level very quickly, makes me wonder how genuine these recent consultations are – and makes me doubt the pre-election assurances about the promised opportunity to debate its crucial elements fully in the House of Commons. Ofcom has already published its draft code of practice and that assumes so much that it is hard to believe that minds remain even half open. And why would the coalition want to air the issue when a clash between its elements is practically guaranteed? 

But perhaps it’s just my natural pessimism – I didn’t think we had a hope in the World Cup, and by the time you read this you will know how wrong I was. I hope, albeit slightly less fervently, that I am wrong about closed minds and consultations too.