2012 Predictions 10: Disputes and Developments

December 13, 2011

{b}From Toby Headdon, Senior Associate at Berwin Leighton Paisner{/b}

In 2012, the ongoing tussle between intermediaries and rights owners about responsibility for policing unlawful online activity is certain to continue. The blocking injunction granted against BT in Newzbin2 was a relatively easy decision, as was the decision that the filtering injunction granted against an ISP in Scarlet v SABAM was contrary to EU law. What both camps need to work out is (1) where the balance lies between these two extremes, which is likely to result in more litigation, and (2) who has to foot the bill for implementing these injunctions, a door which was wisely left ajar in Newzbin2. Such developments may also give rise to something of a ‘technological arms race’ between developers of blocking and filtering technology – which is seldom, if ever, bulletproof – and those who wish to work around it. If they are to have any efficacy, blocking and filtering technologies will need to evolve and adapt rapidly. ISPs will also need to keep one eye on the much maligned Digital Economy Act which is due to be reviewed by the Court of Appeal – if it ever limps over the finishing line, it may yet also have a say on some of these issues.

{b}From Tracey Stretton, legal consultant at Kroll Ontrack{/b}

The rapid explosion of iPhones, Androids, iPads and other smart devices and the rise in social networking as the new way of communicating will make it harder for companies to stay in control of their data and comply with regulatory and litigation requirements. More and more companies will tap into this personal-computing revolution and the business efficiency and agility likely to flow from an influx of new consumer technologies into their businesses. They will do more to address the risks flowing from this new stream of information in social networking policies and security mechanisms.
Companies will have to take seriously the call to get their information houses in order to stay ahead of tech-savvy regulatory enforcement agencies like the SFO implementing the Bribery Act. Given the risk of unlawful or disreputable conduct being exposed in informal, candid and unguarded communications, more companies will review electronic communications as part of the internal audit process to uncover potential wrongdoing such as corrupt practices and negotiate settlements.
Expect to see more postings, tweets and instant messages (both BBM’s and Bloomberg Messages) being called for in litigation disclosure exercises and arguments over relevance, accessibility and proportionality. Lawyers will need to keep a close eye on these technologies and evolving evidentiary and ethical standards as legal practice moves ever further into the electronic world. As the line between personal and business use of devices continues to blur, will privacy become wishful thinking?
Lawyers will do more to get to grips with electronic disclosure under pressure from senior judges, who have made repeated calls in 2011 for lawyer education, and the threat of indemnity costs for those who get it wrong. We can expect to see more data mapping as data is dispersed and scattered across mobile devices and stored in the Cloud and the use of early data assessment technology and expert consultancy to direct lawyers to the key sources of evidence and help scope rational approaches to e-disclosure. New working practices will develop as lawyers turn to intelligent prioritisation technology and predictive coding to reduce the burden of document review. Corporate legal teams will be paying more attention to technology that supports the preservation of evidence and compliance with privacy laws.
Given the importance of contemporaneous electronic evidence in fact finding and the large volumes that need to be grappled with, it has become essential to budget properly for e-disclosure and manage these costs tightly. 1 October 2012 is the target date for the implementation of cost reforms suggested by Lord Justice Jackson including a formal ‘costs management process’. Lawyers will therefore need to focus more on budgeting for costs, in particular on the relationship between the estimated costs and the most likely ultimate recovery or liability at stake, and shape their litigation advice accordingly.