Laurence Eastham looks at case law trends and worries about the wildness of the west
This is my penultimate issue of Computers & Law. It seemed time to begin to reflect on some of the trends and changes that I have seen in nearly 25 years of working on the magazine. Since the great shift from tech hints for lawyers to tech law issues, one trend stands out and is exemplified in this issue: where once there was a dearth of case law, there is now an awful lot.
I recall a time when any ruling on any even vaguely computer-related issue was the cause of great excitement. I lost count of the number of times St Albans was analysed – I was always surprised that we didn’t hold our Annual Conference there - though the software as goods issue was never entirely satisfactorily resolved (as is mentioned in Ken Moon’s article on p 26). Any High Court judgment was covered, no matter how mundane, if any of the magic words were mentioned in the judgment. Now, we have so many tech-related court judgments that I cannot even find space for them all to be reported and analysed in these pages once. (Our Cases Update has had to be shifted to the epub version as a ‘bonus track’.)
Some of that shift is easily explained. Tech has wormed its way into almost every form of commercial transaction and many a personal interaction too. The tentacles of data protection have stretched beyond anything we could ever have imagined 20 years ago; indeed there are times when data protection issues explode from the body of an unsuspecting dispute like the alien from John Hurt.
It follows that many disputes will have a tech element and there will be a tech lawyer not far behind. Nobody will be surprised to discover that a large number of those tech law disputes turn on simple failures to draft sensibly or either the supplier or customer ignoring the contract and there are always some acting in bad faith. To that extent, tech law disputes are like all others. One of the things that marks them out as different and keeps litigation tech lawyers in champagne is that they often nudge against elements of the law that have had no previous judicial interpretation.
There must come a point where that ceases to be true and every provision of every tech-focused directive and every statute has been interpreted to the nth degree. But, fortunately for my successor and the SCL membership, we may have humans living on Mars before that and the magazine will be edited by robots.
One trend that I thought was on the wane was that of comparing the Internet to the Wild West. The implication being that no law constrained activities on it. So I was shocked, and not a little disappointed, to see the interim report of the House of Commons Digital, Culture, Media and Sport Committee refer to a statement of the Information Commissioner in which she described herself as ‘a sheriff in the wild west of the internet’.
I repressed the urge to shout that there is lots of law regulating the Internet and that surely the Information Commissioner should know better than to make the comparison that appears in 87% of articles on the Internet – a statistic verified by Alex Jones of Infowars fame. I paused to consider whether the comparison, which I normally swat away contemptously, had any validity.
The flaw in the comparison starts with our facile assumptions about the Wild West. As some historians state the American West in the nineteenth century was much more peaceful than the very same cities are today and it may well be that the Wild West was not a very violent place at all. What was different was that most law enforcement was informal and consensual.
That’s one reason that thinking of oneself as a sheriff of the Internet is flawed. Law enforcement on the Internet has to be backed up by legal might and the prospect of monetary penalties and, crucially, imprisonment. But the main focus has to involve a lot more than riding into the darker recesses of the Internet on a white horse and taking out the bad guys – I am not sure how you’d get a white horse from Wilmslow to a basement in the Ukraine anyway. The cost of wide-ranging enforcement across the Internet is beyond the resources of the ICO, that’s for sure; it is struggling to enforce in its own backyard.
Unless we want a limited version of the Internet like that sought by the Chinese government, we need much wider involvement from the main players and the public for the Internet to lose its ‘Wild West’ tag. While there really are some things that almost everyone can agree on as being good and some behaviour that almost everyone can see is unacceptable, that is not enough. The real reason the Wild West was never all that wild for long and was attracted towards law and order was that an orderly environment was in the economic interests of almost all – and certainly in the economic interests of those with most power.
You may note that the essay which won the SCL Student Essay Prize for 2018 for Alvin Cheung (see p 35) was on the set topic ‘Are state legislation and case law, or Internet Service Provider action, more important to the enforcement of rules on Internet users?’ I agree with Alvin:– the true answer to that question, like many another ‘either/or dilemmas, is ‘Yes’.