Book Review: Collisions in the Digital Paradigm

May 31, 2017

 It did not take me long to find four things that I could
criticise about this book:

  • ·       
    It seeks to cover theories of technological
    change, Internet law, e-disclosure and court technology so could not hope to
    deal with such massive topics in proper depth as any fool knows that it would
    require at least two books to cover so much ground, or maybe three.
  • ·       
    The author is from New Zealand and thus much of
    the book was bound to have little relevance to those operating in the UK in an
    area of law much influenced by the EU and otherwise dominated by US law.
  • ·       
    It has paradigm in the title – a once-useful
    term that now has me reaching for my revolver.
  • ·       
    It seemed from my quick first look that commas
    had been rationed and, horror of horrors, the copy-editor or author was
    addicted to capitalising ‘Judge’ and ‘Court’ for no good reason.

As I delved further into the text, I discovered that only
the last criticism is valid, although I still harbour some doubts about the
breadth of coverage. This is a good, thoughtful book, packed with balanced

Let’s turn first to the breadth of coverage. It is tough to
criticise David J Harvey for being a polymath. Formerly a District Court Judge
in Auckland, he is now the Director of the New Zealand Centre for ICT Law. A
previous book of his was entitled The Law Emprynted and Englyshed: The Printing
Press as an Agent of Change in Law and Legal Culture 1475-1642 so we are
talking about someone with considerable perspective and a depth of knowledge. A
selection of (edited) chapter titles gives you some insight into the breadth: 3
The Transition to the Digital Paradigm; 4 Aspects of Internet Governance; 5 The
Property Problem; 6 The Twilight of Precedent; 7 Digital Information; 8
Evidence, Trials, Courts and Technology; 9 Social Media; 11 Reputational Harms.
I am not sure that these flow together but each chapter has content of real
value. David Harvey is strongest perhaps in the court technology sphere but I
found plenty to like in the chapters on Internet-related law. The author’s
characteristic approach, whether with technology or law, is to work from basics
– basics to the general lawyer at least – and wind up through the gears until
the trickier issues are addressed. It works well, reflecting his judicial
background in a judicious approach, but it did mean that I began to skip
through on the (highly questionable) assumption that I was familiar with the
basics. Any real expert will need some patience or skip a little to get to the
nuggets – but the nuggets are there, usually presented in a very balanced way.
Others will be grateful for the foundation that enables them to appreciate the
finer points.

As to the New Zealand perspective, meaning that there was
little of relevance for UK lawyers, I was well wide of the mark. The great
benefit of the book derives in large part from that special perspective. And UK
lawyers will certainly find much with which they are familiar – though the book
looks at topics taking account of sources from the USA, the EU, Australia and
Singapore (to name but a few), the greatest weight seems to be given to UK
sources and our senior judiciary is arguably rather too well served. I think
the New Zealand position, metaphorically not geographically, almost requires a
greater international perspective and, crucially, allows the author to weigh
the relative importance of, say, the UK approach against the US approach. That
I was made aware of some developments in New Zealand was no bad thing.

My concern about the use of paradigm in the title and the
references in the text to ‘the Digital Paradigm’, with initial caps, arises
from experiences where the terms, with or without caps, are used loosely or as
a scare term. This book offers an excellent analysis of the reasoning behind
the use of the term. In fact, it’s the most digestible explanation I have read.
Moreover, I ended up convinced that there was no real alternative to its use (though still not convinced about the initial caps for Digital Paradigm).

I am afraid I remain disappointed in some of the areas where
the publisher might have helped out. It’s not just the comma rationing either –
Ryan Gigs was never ‘an English football star’, you spell Colombia one way and
British Columbia another and at one point I came across three howlers in two
pages. The index is of questionable value too, with ‘Susskind, Professor’
apparently being only on p 231 when he is in fact mentioned in many other
places (the only check for accuracy I made) and the index has a strange approach to

The niggles I have mentioned aside, this is a good book
which I would happily recommend. The difficulty is in identifying the right
group for this book. The breadth of coverage makes that tricky. It is certainly
a good grounding for the lawyer who is new to the area, perhaps especially the
older lawyer (ie over 40). It would be of use to the judiciary, many of whom
are being forced to confront both the technology and the tech law issues for
the first time where once they were safe. And it is a good buy for the law firm
library because it is worth dipping into even by the specialists – but the very
detailed contents list might be a more reliable guide as to where to dip than
the index.

David Harvey won me over early on when he revealed in his
preface a long-held ‘desire to see if there was a “Unified Theory” that could
be applied by lawmakers and judges when confronting problems, paradoxes or
collisions between existing law and technological reality’ and admitted that no such solution could be found. If only every author were that honest. But I do agree
that he has, as he hoped, been successful in causing the reader ‘to pause,
think and recognise that there are collisions and that some may be avoidable’. 

Laurence Eastham is Editor of Computers & Law.