Predictions 2017 – Tech Law and More

January 2, 2017

John Yates

Dust off those old indexation clauses!

With the spectre of post-Brexit inflation looming, customers and suppliers alike will rediscover the importance of indexation clauses in IT service contracts.  Perhaps even more neglected than a force majeure clause, and even less interesting, indexation clauses have received virtually no scrutiny in a world where inflation has been virtually zero.  For every £1,000 of charges for services, the customer will pay back an additional £338 over 60 months assuming 6% inflation p.a.  Inflation at this level is rarely factored into business cases and budgets, yet double digit price hikes for imported technology are just around the corner.  

John Yates runs consulting business v-lex, specialising in complex technology and outsourcing contracts.  He is a Fellow and past Chair of SCL.  John started his career with IBM.

Chris Marsden

Telecoms law is a European law field with limited national specialisation. The entirety of 2017 is therefore dominated by consideration of Brexit. Like many lawyers and 48.1% of voters, I consider Brexit a long slow lingering suicide, and still hope it can somehow be proved that Article 50 is the EU’s version of Hotel California: you can check out but you can never leave.

In spring I predicted to all and sundry in Brussels that Brexit would be voted for, Cameron would be gone in no time, May would take over as PM and that she would call a snap General Election in spring 2017 to get a mandate for not leaving. The first three have happened….but the fourth still looks unlikely as the Boundary Commission will not report until autumn 2018, guaranteeing a Conservative government. Theresa May left us her legacy as Home Secretary by refusing to allow freedom to information  in an Orgreave policing inquiry, while passing the extraordinarily intrusive Investigatory Powers Act 2016, so soft Brexit hopes are diminished.

If Brexit does happen then an exit from the Internal Market would be disastrous for inward and outward investors. Remember that it was BT and Vodafone who first broke into other EU markets in the late 1990s, dominating Irish telecoms amongst others. Vodafone’s extraordinary hostile takeover of Mannesman caused shockwaves throughout German corporate governance. Yes, UK telecoms has become more domestically focussed with BT’s failed expansions and the recent (2015-16) mergers leaving two UK-owned mobile companies and O2 for sale. Virgin Media has announced Brexit will mean less investment into the UK.

On net neutrality, it was the Brits (through Ofcom) and Norwegians who wrote the recent BEREC Guidelines on implementation. Ofcom cannot remain a member or even observer of BEFEC/ERG if we leave the Internal Market, whatever the Ofcom CEO may hope. Can we even follow the rules we wrote?

Britannia May therefore waive the rules of Brexit, but must follow the Digital Single Market whether in, soft out or entirely David Davies. A long cold winter will wipe out the Brexit majority even if no-one had changed their minds since June 24, with $1.5trillion (about the same in € or £ these days) wiped off national wealth. From what our esteemed Foreign Secretary called a “membership fee seems rather small for all that access” in our opt-out bespoke EU membership in his unpublished February article, we may by 2018 be looking at the imminence of the worst of both worlds: no fee for no access or a high fee for limited access.

As for a Trump America, expect a divergence from global rules for regulating telecoms and net neutrality, with a return to US exceptionalism in permitting concentration in access markets and discrimination in terms of trade for content providers, ending the open Internet after a 25 year regulated commercial experiment.

Will no-one except The Donald think of the future of our children? 

Professor Chris Marsden is Professor of Internet and Media Law at the University of Sussex. His latest books are Network Neutrality (MUP 2017) Regulating Code (MIT 2013)Internet Co-Regulation (CamUP 2011) 

Gideon Shirazi 

1.     Hacking will stay big news – and victims of hacking will begin bringing large hacking-related claims in court.

2.     The law on good faith will continue to expand and will be found to have a much more general application.

3.     AI systems will draft complete contracts.

4.     The project to create the Online Court will collapse.

5.     Zero-knowledge proof will replace the blockchain as the hot term for 2017.

6.     No board meeting will be complete without a mention of data protection.

7.     Self-driving cars will start to appear on the roads, and new legislation will be passed covering their regulation. 

Gideon Shirazi is a barrister at 4 Pump Court.

Graham Smith 

The War on the Internet will continue unabated amidst a crescendo of demands for banning, blocking, filtering and extra-judicial takedown.

A number of innocent people will have wrongly been accused, arrested or have had search warrants executed against them as a result of communications data errors (adding to the 34 people from 2008 to 2015).

The potential for intelligence agencies to use bulk metadata for unseeded behavioural pattern analysis and anomaly detection will become a focus of challenges to surveillance legislation.

Anyone caught looking at a foreign website will be sent off to internet re-education camp. Actually that was just a bad dream. I think.

Graham Smith is a partner in Bird & Bird LLP and specialises in IT, internet and intellectual property law. His Cyberleagle blog is at

Paul Lambert 

2017 may well be one of the busiest years for data protection issues. While the GDPR is now finalised, the hard work begins in 2017 of prepping and amending policies, procedures, contracts and accommodating the future proofing concepts of PbD and DPbD.

Will the potential cost efficiency, value-add and pre-problem solving potential of PbD and DPbD be fully achieved in 2017? National law provisions also need to be examined as a consequence of the GDPR.

Formal mandated Data Protection Officers may prove to be more significant and empowered than some may have initially thought. The import of the DPO is predicted to grow.

The trend of new forms of personal data to be potentially collected with new devices will continue. As ever, the question remains as to whether new tech is commercialised and data protection is left for an afterthought (and also ignoring PbD and DPbD). Of course, new penalties may prove to be a lightning bolt.

One issue from leftfield is how these issues will possibly fare under a new administration in the US, and indeed how the FTC may or may not change. It is by no means certain that all of the choppy waters of Safe Harbour/Privacy Shield are fully behind us.

Dr Paul Lambert is author of The Data Protection Officer: Profession, Rules and Role (Routledge Taylor & Francis) and A Users Guide to Data Protection, second edition (Bloomsbury Professional).

Jane Seager

Every year since 2012 I have predicted an increase in the number of new generic Top Level Domains (gTLDs), but this will not really be the case in 2017 as the first round has almost finished.  Over 1,200 new gTLDs have now been launched and so  it is time for ICANN and all those involved to take stock of the new gTLD Program and its successes and failures in order to plan for the next round of applications, anticipated to be in 2018 at the earliest. 

The rights protection mechanisms put in place to safeguard against abuse will come in for particular scrutiny.  This year saw the beginning of Registry consolidation, and I predict that in 2017 this will continue as the weaker players with ill-chosen extensions either fail or sell out and the stronger ones increase the number of popular Registries in their ownership.  This year the 10 largest TLDs were .COM, .TK (Tokelau), .CN (China), .DE (Germany), .NET, .ORG, .UK (United Kingdom), .XYZ, .RU (Russian Federation) and .NL (Netherlands), and it is anticipated that in 2017 more new gTLDs will join .XYZ in this list. 

2017 will also be the year that we will see companies start to use their .BRAND TLDs in much more visible and innovative ways, meaning that participation in the next round will become essential for those that have yet to make the leap. 

In terms of internet governance, 2016 saw the transition of the IANA function away from the US Government to ICANN and the global internet community, although this went largely unnoticed by the mainstream media, despite doom-laden predictions from various US politicians that America was ‘giving away the internet’.  I predict that, whilst ICANN’s actions will continue to come under scrutiny from national governments, the transition will on the whole be successful and 2017 will see an increase in stability as the predicted apocalypse fails to happen. 

Moving on to technology in general, I have a confession to make: 2016 was the year I finally bought my own smartphone.  I used to think that when I wasn’t working I should do something other than fiddling with a device (like attempting to speak to my children), so if it couldn’t be done on my trusty work phone with keyboard (you all know the one I mean), then too bad.  However, 2016 was the tipping point for me when the online and the offline worlds merged, at least in my head, and I realised that I could no longer actually function properly in my daily life and complete the most basic of tasks without being almost constantly connected. 

I predict that in the Western world the percentage of the population who are ‘always on’ will reach close to 100% within a generation, and this will fundamentally change society as we know it.  It is clear that rapid advances in speed and storage mean that communication is becoming increasingly visual as opposed to written, and 2017 will see a huge rise in video messaging services. We will see more ‘vertical’ video as smartphones become the norm, 360 degree video will become increasingly common and the legal issues raised by live streaming will continue to challenge us.  The explosion of user-generated content will force traditional media either to adapt or die. 

Personal email use has almost been eliminated by those under the age of 40, and I predict that work email will soon become as outdated as the fax given the burgeoning use of social media-like interfaces by companies to facilitate professional communication.  

Jane Seager is of Counsel at Hogan Lovells (Paris) LLP 

Ian De Freitas

2017 will be the year when we are all Watching the Detectives:

·        The Investigatory Powers Act 2016 will start to come on stream, with its ambitious objective of balancing extensive powers with extensive oversight. In principle, it might work (and could be a template for other countries), but the question is whether it will in practice. Will those who exercise these powers respect or abuse them?  

·        We will also be keeping a close eye on Privacy Shield. Will its oversight mechanisms be effective, in particular the US State Department’s Ombudsperson Scheme? The first US/EU joint review of Privacy Shield will be very interesting and important, particularly if Model Clauses are invalidated (which seems possible as a result of the challenge launched in Ireland).

Ian De Freitas is a Partner at Berwin Leighton Paisner LLP 

Monica Horten

The starting point for Brexit negotiations is a shifting target and will  be determined by process, but let’s assume that at some point in late  2017, the Digital Single Market arises on the agenda. What might be the specific points for discussion? The devil will, of course, be in the detail.

Starting where there has already been some debate – the GDPR. This is a thorny matter because a Britain which is outside the EU will need have to comply with the rules for third-country transfer. That will almost certainly require an adequacy decision from the European Commission, in order for businesses to transfer data across the new border.

Roaming creates another headache for the negotiations. Will the Germans be watching Netflix like at home whilst we get Bill Shocks? And still under the Brexit radar, but economically of some importance, is the fate of the British broadcast industry and the licensing of television channels which broadcast to other EU countries.

The issue is not just about whether the British government says it will uphold the EU law on these points, implying that the rights of businesses and citizens will therefore be protected. It’s more about the ability of the EU – minus Britain – to withhold something crucial which will result in a loss for British citizens and businesses. For example, the British government may give assurances that it will implement the GDPR. Fine.  However, there are political reasons why the EU may choose not a grant the adequacy decision, irrespective of whether Britain implements the GDPR. There is political awareness in Brussels of British intelligence services activities tapping into German Internet cables, which dates back to Edward Snowden’s revelations. More recently of course, the passing of the Investigatory Powers Act effectively underwrites bulk surveillance by the security services. Either of those would not pass the adequacy test. And so the requirement for an adequacy decision provides a ready-made political football for the EU negotiators.

It is a similar story with the other two examples. <pq2>Both roaming and broadcast licensing offer opportunities for canny negotiators to pull political fast-ones. Negotiating the exit from the Digital Single Market threatens to be a rough ride.</pq2> Just keep calm…

Dr Monica Horten is Visiting Fellow, London School of Economics & Political Science. Her latest book is The Closing of the Net.

Justin Dear 

There have already been numerous articles about the privacy concerns over autonomous cars. In order to function they require vast amounts of information about their owners.

The more the car has to do, the more data it needs. Radars, sensors, GPS and cameras will all be needed to make the cars safer. They will also be able to communicate with other cars and with intelligent roadways about speed limits, weather conditions and so on. Freed from having to actually drive, owners can sit back and exchange emails, videos, pictures, surf the internet, stream movies and music, basically do all those things which currently would just cause accidents.

Even homes are likely to be connected to the cars, and there’s more. South Korean automaker Hyundai recently revealed a partnership with Amazon’s Alexa voice service which would allow owners to start their car, charge their battery or turn on the air conditioner via a quick voice request.

With all of this data, automakers are currently engaged in a fierce battle to decide who will own it and what they will be able to do with it. Data is money so we can be reasonably certain that unless there are strong rules in place not everyone is going to use the data in a benign way. Current laws may not be enough, so it is almost certain that at some stage we are going to see some important court decisions in this area.

Outside of privacy there are practical considerations. If there is an accident who is responsible? The driver? The computer? The manufacturer? All the above? And let’s not even get started on the security issues,

In some cases current laws may be applicable, but there are a host of potentially new scenarios which won’t fit. For example autonomous cars currently cannot “see” traffic police. A road sign, yes. Traffic lights, no problem, but a bobby on the beat, no. I don’t think an excuse like “I’m sorry officer but my computer doesn’t believe you exist,” is going to carry much weight in court. Actually it’s not just police they can’t pick up. Autonomous cars currently cannot see pedestrians.

Similarly will there be a new offence of being under the influence while not in charge?

Justin Dear, Head of Online News Desk (Asia-Pacific) for Agence France-Presse

Christopher Bates

The Digital Economy will continue to gather pace, with digital change intensifying across industries. Real Estate and Infrastructure will face disruption similar to that experienced by financial services.  With time to upgrade ageing systems running out, companies’ digital strategies need to move from theory to implementation. Proliferation of collaborative partnerships will enable the promised benefits of smart data and AI to be realised. 

Christopher Bates is a Partner at Ashurst LLP