Predictions 2016: IT Lawyers

These predictions come from a wide cross-section of lawyers engaged in tech law

Antony Hall, Partner and Head of Commercial Services at Mincoffs Solicitors LLP

In 2016 I predict we will see the Government redouble its efforts to transform the country's public services through the support and adoption of digital technologies. The UK is a world leader in open data and great strides have already been taken by the Government Digital Service (GDS) to improve services and empower citizens through the smarter use of technology and data (the award-winning gov.uk and G-Cloud procurement platform are notable examples).

Last month's spending review revealed that the Government will be throwing £1.8bn at digital technology and transformation projects over the next four years. Will this investment usher in the smarter future that policy makers are hoping for? At present many city and local councils act in silos and lack the in-house expertise to analyse and exploit the data they generate. It will be interesting to see whether Government will become better consumers of data in order to fully harness the opportunity.

Kit Burden, Partner, DLA Piper UK LLP

Robotics and automation rule the roost. We're not all going to be replaced by robots just yet but processes and businesses will be disrupted. Cloud becomes 'the new normal' as opposed to the 'new thing'. We're all connected, but cyber security concerns sometimes mean we wish we weren't

Dr Chris Pounder, Amberhawk Training Limited

The GDPR will be roundly criticised in the UK.

·        Privacy Advocates will claim it allows Member States too much flexibility with the exemptions, with consent, profiling and that the level of fines are too low.

·        Data controllers and data processors will complain about the prescriptive nature of its provisions, especially with respect to documentation, data loss and transfers outside the EEA.

·        The Secretary of State (John Whittingdale) will stay within the limits of cabinet collective responsibility but only just. He will mutter in the background that the GDPR is a typical example of objectionable Euro-nonsense, imposed on UK business by a set of European Greens, that adds weight to the argument of those who claim that the UK should leave the EU.

The European Data Protection Board will adopt FIFA's voting system to resolve disputes so that each country has one vote irrespective of its population size.

Toby Crick, Partner at Bristows LLP

In the IT Services and Outsourcing market we will continue to see customer side lawyers trying to push the envelope on the range and scope of liability clauses – seeking to recover traditionally excluded losses like loss of profit etc. Meanwhile, on the supplier side, the rise of cloud services deals and the integration risk that more diverse/multi-sourced delivery models give rise to will see a continuation of the trend for suppliers to pass responsibility and risk to the customer. It is too early to tell how those rival pressures will play out. What is certain is that a lot of time and effort will be spent finding a balance between them.

Meanwhile, the threats to the business models of Internet service providers and platforms from ultra pro-privacy advocates and, potentially, the people behind the EU's digital single market initiative will continue. Whether those threats finally start to harm consumers' access to all that the Internet can offer remains to be seen – maybe next year we will start to find out.

Jane Seager, Counsel at Hogan Lovells

Last year I predicted that around 1,000 new generic Top Level Domains (gTLDs) would in fact be in use by the end of 2015.  This wasn't far off as over 800 have so far been delegated, and it is easy to predict that this number will reach around 1,400 by the end of 2016, given the number of applications received by ICANN.  However, despite Google's high profile announcement of the use of www.abc.xyz for its new Alphabet holding company, and rapper 50 Cent's choice of www.50inda.club, which boosted registrations under .XYZ and .CLUB respectively, we have yet to see widespread adoption of new gTLDs to the detriment of .COM and other more traditional TLDs.  However, I predict there will be similar announcements to come, not to mention more high value sales in the secondary market (<wine.club> reportedly sold for $140,000 in 2015), which will strengthen the position of new gTLDs and start to alter the way we use the Internet.

Over in the world of Internet governance, 2016 will see the transition of the IANA function away from the United States Government to ICANN and the global Internet community, meaning that the Internet as we know it is at the beginning of a significant transitional phase.  Whether ICANN will be able to successfully take the reins has yet to be seen, but it is certain that its actions will come under intense scrutiny from national governments, and any issues could potentially threaten the stability of the Internet.  ICANN has so far shied away from policing Internet content, but this is a growing source of debate in the domain name community and may increasingly take centre stage going forward.  In the wake of the heightened terrorist threats, it is certain that technology companies will come under more pressure from governments to grant them backdoor access to data and communications, and cybersecurity will remain a hot topic.

On a lighter note, live streaming will become increasingly widespread, and the popularity of virtual reality headsets will explode as the technology becomes more sophisticated and extends to previously unimagined uses beyond the world of gaming.  

Stephen Mason, Editor, Digital Evidence and Electronic Signature Law Review

Finally, judges and lawyers will have to understand that computers are not 'reliable', and the presumption of 'reliability' should not apply. The Post Office Horizon system will come under the scrutiny of the Criminal Cases Review Commission. The publication of the full transcript of the trial of R v Seem Misra will help the process (see http://journals.sas.ac.uk/deeslr/article/view/2217).

Sacha Wilson is an Associate at Bristows LLP

Adtech will continue to alter significantly the shape of the advertising industry and in particular the means by which advertising space or 'inventory' is bought and sold.

'Programmatic' advertising (that is, the automated, data-driven buying and selling of online advertising inventory) will expand significantly in scale and broaden from online display advertising to a wider range of media such as TV and potentially OOH ('out of home' – eg billboards etc). As a result, advertising lawyers will not be able to avoid becoming familiar with the multitude of digital platforms which operate in this space (eg demand side platforms, ad exchanges and supply side platforms). However the growth of ad-blocking software is likely also to increase, exerting continued pressure on standard display advertising. This will lead advertisers to find ever more engaging and innovative digital advertising models such as 'native' advertising and 'vlogger' endorsement deals. That, in turn will lead to a continued rise in regulatory scrutiny (eg from the ASA and the CMA) to ensure consumers are not misled and the distinction between editorial and advertising is preserved to the maximum extent possible.

Simon Deane-Johns is a consultant solicitor with Keystone Law and Chair of the SCL Media Board

I predict that within two years one or more creative industries will agree the basis for using a blockchain or other distributed ledger technology to track the use of their work and fully account for royalties due.

Emma Wright (Partner at Bond Dickinson LLP) and Darren Jones (Solicitor at Bond Dickinson LLP)

The Leap to the Intelligence Age?

With the number of connected devices growing exponentially, devices - be they wearables, household goods or connected vehicles – will become the industrial setting for increasingly intelligent services. We have come a long way since predictive texting. The value-add of a service offered on a device will become a differentiator. We believe this will lead to: i) an increasing focus on the embedded software and platforms used on devices, both as to user-friendliness and the ability to monetise; and ii) a spotlight on cyber security and data ethics: trust is going to remain key, both in relation to consumers being prepared to share their data but also in the way a brand will be damaged if there is a breach of security. We also expect the convergence of delivery platforms and business models to continue but with increasing targeting of specific end-users.

Broadband everywhere will remain a priority, and with continued improvements in connectivity it is likely that data will become the basis of a modern day gold rush, as legislatures and companies alike see the value of data as the new currency of modern transactions and look for commercial models to deliver this increased connectivity. Our view is that investment will focus on both infrastructure costs and new disruptive business models but also on security and privacy systems, including the advancement of the fifth domain of war to match heightened global tensions. And with the EU's focus on consolidation in the telecom sector – and the depth and breadth of its Digital Single Market proposals - we expect regulators in all regulated utility sectors to increase enforcement of consumer legislation.

As with any period of rapid, technology driven change, 2016 will see exciting new goods and services come to the market, changes to our daily routines and regulators and legislators trying to play catch up. 2016 has the potential to move from the Information Age to the Intelligence Age.

Marion Oswald, Senior Fellow in Law, Head of the Centre for Information Rights, University of Winchester. Twitter: @_UoWCIR

The road to hell is paved with good intentions and I predict that 2016 will be the year in which we decide the road to take. It will be the year that the public, private and third sectors step up their use of 'Big Data' and algorithmic data analysis to make decisions that affect individuals.

Good intentions over privacy fears will scupper projects that could be in society's, cities' or individuals' best interests, dismissing what might be regarded as a duty to use valuable data.  On the other hand, zeal for projects believed to be in the public good may mean concerns about the potential detrimental impact on particular individuals are downgraded, and the private sector will in general continue to put profit over privacy.  Have we yet given enough thought to what a future might look like if risk, local decision-making or individual choice are taken away by the use of algorithms? What might the 'drip-drip' affect be? We have yet to get to grips fully with the fact that an increasing number of decisions are not based on information that we ourselves provide, but from exhaust data - by-products of our online activity - or from linking with other data - perhaps 'public' data such as Twitter messages - or by categorisation using algorithmic analysis.

I have previously expressed the view that continuing to focus on individual consent and legitimate interests of data controllers cannot hope to regulate these developments in the long term. We must 'think different' (as Apple used to say) and 2016 will be the year to do this. We need to develop a clear ethical framework under which Big Data and algorithmic analysis projects can be judged –a framework applicable across all sectors.

We need to find a better way of governing the private sector Internet and Social Media 'States'. Under the draft Investigatory Powers Bill, the real State's use of bulk datasets will be governed by warrant and Commissioner oversight. The governance of the private sector's use of bulk data seems laughably weak in comparison.

Dr Monica Horten, Visiting Fellow, London School of Economics and Political Science. Author of 'The Closing of the Net' (Polity Press, forthcoming, March 2016). Website: www.iptegrity.com

Two recent news stories suggest issues that will loom large on the Internet policy agenda for 2016. There is Deutsche Telekom's reaction to the new European Regulation on open Internet access: the German network provider will introduce tolls on start-ups to put them in the fast lane. The price will be a few per cent revenue share. And then there is Microsoft's decision to ring-fence European data within German data centres under a trustee system, so that it is, ostensibly, out of reach of the United States intelligence services. Customers who want this enhanced privacy protection will have to pay for it.

Both of these developments reflect pivotal changes in the way that Internet-based services operate, and will have long-term ramifications for the future.

It's interesting that whilst Deutsche Telekom's Internet fast lanes are certain to be disputed and will generate plenty of political argument – an easy win for a prediction – Microsoft's proposal has so far received a relatively warm welcome. The notion of Internet fast lanes is relatively well understood, as it has been a key bone of contention in the political debate on both sides of the Atlantic. This new evidence of the telecom providers plans will just add fuel to the fire. However, the idea of paying for protection from the intelligence services is a curious one, raising the notion of data protection as a two-tier service. It will be interesting to see how this plays out as European and US law-makers seek to resolve the new safe harbour rules.

Paul Gershlick, Partner, Matthew Arnold & Baldwin LLP

Last year, I said the next few years would see an exponential growth in the take-up of healthcare apps and wearables, measuring pulse, blood pressure, weight, glucose levels, breathing activity and more, as people's obsessions with lifestyle morph into real healthcare benefits.  That is taking off but there is further to go and it will continue to grow fast in 2016.  Meanwhile, there are other impacts of the convergence of technology with healthcare with the 3D printing phenomenon.  The ability to develop personalised prosthetic limbs using 3D printing will happen soon, and further in the future (a bit beyond 2016) there will be 3D printing of medication – as outlandish as that sounds!  As I write this, I feel safer in making those predictions, than in sticking my neck out about what will happen with future data protection regulation in Europe and the legal ease for businesses to make data transfers out of Europe! 

Beverley Flynn –Data Protection and IT Team at Stevens & Bolton LLP, where she is a Partner

The legal buzz words for the year will still be 'safe harbour', data protection breach ' the 'new Data Protection Regulation' . However in the 'real' and 'commercial' world:

·        cyber risk insurance will become more prevalent and we will see it become more common to list it in commercial contracts and tenders as a requirement

·        pharmaceutical companies will see a rise in the use of big data and wearable technologies

·        health care providers could require us to show our fit band outputs when assessing our health needs

·        car insurers could use evidence from our electronic dashboards and data boxes on our vehicles to monitor use of our vehicles - in the name of reducing our premiums.

Callum Sinclair, Partner at DLA Piper 

We will begin to see from results whether large SIAM and Towers multi-vendor deals can satisfy original business cases and genuinely deliver the benefits of 'best of breed', collaboration and flexibility for the additional contractual complexity.

Organisations will start to adopt wide-scale but 'light' RPA (Robotic Process Automation) (as opposed to complex AI) which will cause some disruption to traditional sourcing models and employment practices.

The Internet of Things will continue to evolve so as increasingly to remove humans from the equation through behind the scenes interaction of machines.

Cyber-attacks of a scale and sophistication not yet seen will hit corporate, government and third sectors with at least one blue-chip CEO or ministerial level resignation - also a focus on readying Rio physical infrastructure for the 2016 Summer Olympics will risk a major 'drop of the ball' (forgive the sporting puns) on IT infrastructure and security.

Mass proliferation of drones will lead to some more high profile accidents and privacy violations and pressure will grow to reinforce drone regulation and effectively enforce the rules we already have.

Gideon Shirazi, barrister at 4 Pump Court, Temple, London

The UK Supreme Court will give further judgments emphasising the words used in contracts, applied to other contractual clauses.

The courts will expand the duty of good faith in outsourcing contracts.

A high profile company will be caught carrying out a cyber-attack on another.

Disputes arising out of SIAM-based multi-sourcing models will feature in court.

An AI (artificial intelligence) system will draft a major contract.

 

Published: 2015-12-31T10:59:34

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