2012 Predictions 4: Practitioner’s Prognostications

December 2, 2011

{b}From Stewart Room, Partner, Field Fisher Waterhouse{/b}

Cookies will continue to be a hot topic next year as we will see much high profile data protection enforcement activity in this area.
The backdrop to this is the EU Citizens Rights Directive 2009, which made the dropping of some kinds of cookies and similar tracking devices unlawful without the consent of the user of the relevant terminal equipment. The new law came into effect in May this year, but the Information Commissioner announced a 12-month moratorium on enforcement action, to give data controllers enough of a chance to get their houses in order.
So in six months we can expect to see the cookie debate explode, as privacy advocates and consumer groups press the Information Commissioner to take legal action. Big companies are bound to be the main focus of the pressure groups, but they’ve got the financial muscle to put up a good fight if the ICO comes calling, giving a recipe for a compelling legal story.

{b}From Kit Burden, Partner and Head of Technology, Sourcing and Commercial Group at DLA Piper UK LLP, the European Outsourcing Association Advisors of the Year, 2010 {/b}

Recognition will dawn that there is more ‘old’ than ‘new’ wine in the Cloud Computing bottles, and some conventional norms in associated contract provisions will be re-applied.
There will be low levels of IT project activity but an increase in IT related case law, as more troubled projects hit the buffers and work their way through the courts’ processes, hopefully giving rise to clarity on some of the residual ‘grey’ areas.
IT law in private practice will continue to condense in favour of a more distinct number of large groups, supplemented by a number of individuals or smaller teams spread more widely.
e-enabled LPO takes a firm hold on commoditised and IT-enabled areas of the law and puts the squeeze on high street and smaller law firms.

{b}From Matthew Lavy, Barrister at 4 Pump Court{/b}

The Cabinet Office publication of the Open Source Procurement Toolkit will spark a renewed interest in Open Source Software and increased adoption beyond the networking and back-office roles that have traditionally been Open Source’s main stomping ground. Suppliers and procurers alike will need to review their approach to SLAs and warranties to ensure that they are commercially and legally sensible in an Open Source context.
As the new Practice Direction beds in, litigants and the courts will become more willing to depart from Standard Disclosure in document-heavy tech cases, and to embrace more innovative and dynamic approaches that cut down the cost of disclosure and the amount of court time spent arguing about it.
Projects will continue to go wrong; data will continue to be lost; clouds will form and dissipate; history will repeat itself.

{b}Emma Brownlow-Smith, Solicitor, Field Fisher Waterhouse{/b}

For many people, their phone is their life: organising, connecting, even waking them. That’s just the tip of the iceberg. Apps and e-commerce sites already facilitate mobile web payments, but what about the physical world? By way of a small chip built into their phone, ‘Near Field Communication’ (NFC) enables users to pay for items in everyday surroundings by, for example, simply waving their phone over a reader at a paypoint. The possibilities don’t end with payment – a phone could become an ID card or a ticket; a location information service or a loyalty discount gateway. The technology is not new: it’s already being used in Oyster Cards, but with the release of NFC enabled phones, more emphasis is being placed on the need to establish an underlying infrastructure. As companies, including Google and Visa, start to embrace the possibilities of the contactless world many more will surely follow suit.

{b}From Jon Bloor, head of business law at Lees Solicitors LLP on the Wirral; Jon also writes about law, legal technology and social media at http://www.peninsulawyer.com{/b}

2012 will be the year when tablet users start to question Microsoft Word as the standard lawyer’s writing tool.
Tablets means that lawyers end up using text editing apps as a workaround pending an app version of MS Word (don’t hold your breath!).
As well as being more elegant and easier to use, these impose a firewall between two conflated processes which should be separate: capturing text, and formatting documents.
IT departments will see the first demands from lawyers to use apps like Byline & WriteMonkey as their everyday writing tools, with MS Word reserved for the ‘heavy lifting’ of contract drafting.

{b}From Paul Gershlick, Partner Commercial / IP / IT at Matthew Arnold & Baldwin LLP{/b}

I predict that we will see more EU data protection muddle: a further deferring of the cookies opt-in law in the UK, further appeasement for those EU countries that have not yet implemented it, continued fudge over cloud computing data protection issues, further debate about what constitutes ‘consent’ and a new EU data protection law that gives people the mistaken belief that they will have a right for their data to be forgotten.
Oh, and Panama to be added by the European Commission as an approved third country for data transfers (tongue in cheek!).
So, this may be a boring prediction, but more of the same!

{b}David Lewis, Associate, Field Fisher Waterhouse{/b}

Cloud services in the consumer space will become even more commonplace in 2012, as the quest to simplify user experience and reduce local storage continues. This will push data security further into the limelight, as more users entrust not just their personal information, but also their music, film, documents and other data to distantly located servers.
Google Music will seek to conclude its record label negotiations and attack iTunes’ market share, with an ex-US launch.
And whilst Steve Jobs will not be physically amongst us in 2012, his legacy of driving a focus on sleeker UX and selective content curation will be ubiquitous: Windows 8 will see Microsoft embracing touch computing in an unprecedented way, doing away with the iconic ‘Start’ menu and championing an online store for Metro-based apps.
And in the UK, YouView will bring the Internet and apps into the living rooms of even the staunchest luddites.