Predictions – Fourth Course

December 20, 2010

{b}From Chris Dale of the-Disclosure Information Project:{/b}

Some good medium-sized firms will start taking e-disclosure work away from bigger and less agile firms by teaming up with an e-disclosure supplier (or two). These alliances will not just do the work, but will go out and win new work with joint presentations.
The Electronic Documents Questionnaire provided in the eDisclosure Practice Direction 31B CPR will be widely used in cases for which its use is not compulsory; it will also be used to enable informed discussions to take place in the early stages of regulatory investigations.
The Bribery Act 2010 will be a major new factor in persuading corporations to improve their ability to manage information which may be required for litigation, regulation, or investigation purposes. The drivers will not just be the wish to avoid prosecution but the defence that ‘adequate procedures’ were in place to prevent bribery.
A US court will order discovery of documents held by a German subsidiary of a US company on the basis, inter alia, that EU courts rarely enforce data protection and privacy laws. By coincidence, no doubt, the following months will see a series of cases in EU courts in which subsidiaries of US companies will be fined significant sums for various breaches of EU data protection laws, and their executives will be threatened with imprisonment.
A judge handling electronic disclosure at a case management conference will say ‘Oh why don’t you just go away and sort out a protocol or something’ and will be reported to the Master of the Rolls by both parties and his own clerk for breach of his duty of active management.
As public transport grinds to a halt through a combination of the weather, strikes and incompetence, the Crown Prosecution Service will attempt to prosecute everyone who sends any communication indicating impatience with their trains, buses etc. Thanks to court closures and poor transport, many people will unable to travel to court for their hearing, and will be sentenced to prison in their absence. Because of prison cuts….

{b}From Dr Monica Horten, Editor of Policy Matters at{/b}

Freedom of expression in the digital environment has been catapulted to the top of the policy agenda in the wake of the Wikileaks saga. We have seen how easy it is for governments to lean on corporations and get them to take on the role of enforcer. In this context, we have seen how, even where an allegation is unproven, they will turn off facilities to web-based organisations. 2011 will almost certainly bring further tests for intermediary liability. Various policy initiatives in Brussels and Westminster will increase the threat of liability being imposed by legislation.
Any moves in respect of IPR appear to have been put on hold pending the Judicial Review of the Digital Economy Act, although the looming ACTA (Anti-counterfeiting Trade Agreement) will pose some new issues for IPR enforcement from the international perspective.

{b}From Mark Turner, Partner at Herbert Smith LLP{/b}

Gartner predicted that 2010 would be the year in which cloud computing would reach the ‘peak of inflated expectations’. They were right. In 2011 the cloud computing model will become mainstream. It will be enthusiastically embraced by individuals, increasing numbers of SMEs and some large corporates and public sector bodies.
The economic case for cloud computing is compelling, but in order to entice sophisticated users who are concerned about issues such as security, compliance and auditability, cloud providers will seek to better address their concerns, developing the existing one-size-fits-all models into bespoke packages that can be integrated with customers’ existing IT infrastructure and business requirements. In particular there will be a big move to private clouds. While this will entail higher costs for customers, it will create a significantly busier cloud landscape amongst multinational businesses and government.
The amendments to the Data Protection Directive, expected early in 2011, are unlikely to sufficiently meet the needs of the rapidly evolving cloud landscape. But they could initiate a movement towards global data protection standardisation, pursuant to which cloud providers worldwide would be able to guarantee the same levels of protection, facilitating mainstream transition into the cloud.