2012 Predictions 6: Portents and Prospects

December 6, 2011

{b}From Martin Sloan, Associate in the Technology, Information and Outsourcing Group at Brodies LLP{/b}

1. Reform of the data protection directive will be a big issue. We know that the European Commission will publish its proposals in January, and Commissioner Reding has already trailed a few proposed initiatives. The Article 29 Working Party has also put its marker in the sand by releasing opinions earlier this year on the use of geolocation services on smart devices and the general issue of consent. Both Commissioner Reding’s speech and the Article 29 Working Party’s approach to the core issue of consent is at odds with the more permissive approach taken to date by the UK Information Commissioner where, for example, the Information Commissioner considers that data controllers need not give explicit notification where the proposed use of data is obvious. How the UK ICO will respond to the move towards ‘explicit informed consent’ remains to be seen, particularly given the ongoing confusion in relation to the new rules on the use of cookies. We also know from previous grumblings that parts of the EU do not like the UK’s approach to transfers outside the EEA – in particular, the ability of data controllers to vary (or ignore altogether) the EU model clauses and make a finding of adequacy in respect of a proposed data processor, without needing to involve the national regulator. A change to the law here could add to the administrative burden when offshoring, particularly when dealing with multiple group data controllers.
2. Will Safe Harbor survive? Facebook’s recent settlement with the FTC shows some of its failings.
3. The ‘right to be forgotten’ will turn into as big a shambles as the change in rules over cookies.
4. The UK ICO will continue to exercise its powers to fine, and a blue-chip company will get the biggest fine to date. Human error is still the key cause of data breaches, so woe betide any organisation that fails to put in place training and systems to cut out administrative mistakes.
5. Siri will spark a number of copycat systems on other platforms.
6. This time next year I will have become addicted to a new iPad/iPhone app that doesn’t even exist yet. How did I {i}ever{/i} live without it?

From Shelley Thomas, Partner, Hill Dickinson LLP

I think 2012 will see the imposition of much higher monetary penalties on those breaching the Data Protection Act by the Information Commissioner, with a focus on both the public and private sector; given the dominance of the public sector in the monetary penalty notices issued to date, one cannot help but suspect that a significant private sector monetary penalty may be on the horizon. There will be flurries of press activity in January (assuming that the long awaited release from the Commission on the future of data protection law arrives as promised) and in May, to mark the 1st anniversary of the revised Privacy and Electronic Communications Regulations (and the date that the ICO will start to fully enforce the requirements). Whether the latter leads to a greater clarity and understanding of the requirements of the PECR (and consequently greater compliance) remains to be seen.
Turning to the use of IT by the profession, one would not bet against the increasing proliferation of mobile devices of all shapes and forms (with the associated risks of loss!), but there will be a shift towards tablets and devices whose focus is on more than merely picking up e-mails. With the advent of the Legal Services Act, the ban on the payment of referral fees, and the continuing economic uncertainty, the profession will be looking at increasingly creative ways to use the technology available to it (and specifically the Internet) to drive business and maximise profits. The days of law firms only having brochure web sites may be over.

{b}From Charles Christian, Editor of Legal Technology Insider and the Orange Rag blog and widely recognised opinion former in legal technology{/b}

The whole BYOD (bring – or buy – your own device) plus Consumerisation trend for office technology will become unstoppable within law firms during 2012 with the result that both law firm IT departments and legal software vendors will increasingly be having to adapt their plans to accommodate the latest devices. Four factors will drive this: the rise and rise of the iPad – there’s one, possibly two new models due out in the spring; the decline of the Blackberry platform – who 12 months ago would have predicted they would totally lose the plot; the growing number of Generation X and Y people rising up through law firm management as the Baby Boomers fall off their perches; and a short-sighted belief by law firm partners that BYOD is a cheap option. Another exciting year in fact!