February 29, 2016

GDPR Focus

Like Hannibal Smith in the A-Team, I love it when a plan comes together. But I love it even more when my half-baked idea for a vehicle gets grasped by the SCL membership and turned into something that looks like a beautifully engineered limousine. And that’s what happened with this issue.

The GDPR is probably the most important development for pure tech law of the last 20 years (though that pick might look a little sick if we head for Brexit). It was a no-brainer to suggest a themed issue on the topic just as soon as we had something approaching certainty about the text. What I did not expect was that my handful of suggestions for topics would be expanded upon and teased out so impressively by those reading my blog post seeking contributors. Despite a moment of anxiety on my part when I received an avalanche of articles on deadline day, reading the contributions on the GDPR has been a great pleasure and has opened my eyes to many issues with it. I want to thank all the authors for their suggestions, and of course for the contributions themselves.

I was disappointed with the nature of the process that led to so many late amendments to the GDPR, but the articles in this issue should give readers cause to worry about many aspects of it – not just the late amendments. I think this issue will be a useful reference source for years to come. The only pity is that the drafters of the GDPR did not have access to some of the wisdom imparted here before signing off the final version.

With so many good practical articles on the GDPR, it would be easy to take one’s time in digesting this issue. But I would like to highlight Paul Golding’s article on p 34 – Apportioning Security Risk and the GDPR – because he is calling for views from those interested in the allocation of contractual risk and I can see a real possibility of value arising from an exchange of views in this area. Andrew Hooles has had real success in getting input from SCL members following his article in the last issue (Can We Write Better Contracts?) and it would be nice to see a similar reaction to Paul’s article on apportioning risk.

The good news for data protection lawyers is that there is more to come on the GDPR in the next issue. The good news for other tech lawyers is that the next issue will mainly cover outsourcing, contracts, blockchain and much more. I really don’t want us to become the Data Protection Journal.

Age Verification and Porn

The latest development as I write this is the consultation on the government’s plan to require ISPs to have a robust age verification system in place to protect ‘children’ from online porn. I am genuinely supportive of the idea that the horrific images that now pass for mainstream porn should be kept out of the reach of children and accept that online porn can be corrosive and corrupting. I have little patience with the supposedly insuperable technical difficulties. But there is so much in the consultation’s proposals that leads me towards despair that I was not able to complete the loaded survey questions.

The most basic cause of despair is the idea that sexually mature teenagers of 17 can be treated as children. Strangely, we don’t think that we should ban them from doing all the R18 certificate things – they can marry after all, we just think they should be banned from watching others do them. It doesn’t seem fashionable to say it, but this collective bombastic amnesia is, at best, the triumph of fear over experience. As @sirbonar amusingly tweeted, for this to work, we don’t just need a different sort of Internet, we need different sorts of children. Look at the mess that we are now in over sexting, where prosecution guidelines have had to be revised to take account of the surprising fact that teenagers think a lot about sex – who would have thought it.

The second milder cause of despair is that, given the premise that we are protecting children, there is no role for parents to permit their child access to such material if they think fit (without committing minor fraud).

The dive into despair is complete when one realises that the government’s expert panel has completed a report which appears to say that they cannot think of a policy intervention that would make much difference. Notwithstanding that, the government reaction seems to be ‘let’s bash on regardless’ – another example of the usual full commitment to evidence-based decision-making.

SCL Media Options

Every magazine contents page has a little sticker suggesting that half your magazine is missing – the rest is on the SCL website. That’s never been more true than now – as you read this, most of the next issue is sitting ready to read on the upgraded website. But that’s not all you are missing if you rely solely on the magazine. We have almost 2,000 followers of our Twitter feed (@computersandlaw) which provides valuable updates and insights on tech law and related developments. And don’t forget that you can read this magazine in epub format too – and the epub version always includes some ‘bonus material’ that readers of the paper version miss out on. It’s well worth exploring the options.