Predictions 2018 - 17

A look back at some his past, and notably perceptive, predictions from Graham Smith

From Graham Smith

The SCL has asked me to look back at the three predictions that I made in 2009. So here goes.

The first prediction was that fundamental human rights would play an ever greater part in online-related policy debates and litigation

I’ll award myself 10/10 for that one. Pretty much every policy debate or significant internet litigation is now conducted within a fundamental rights framework, from SABAM v Scarlet (CJEU) to Ashby Donald (ECtHR) and Delfi (ECtHR), site blocking injunctions and surveillance and data retention challenges, not to mention the current debate about intermediary liability. Forecast: no change.

Second, I suggested that there would be a continuing domestic and international bloodbath over ISP and online intermediary liability. I said that unlike in the 1990s, when the policy debate was slugged out between rights holders and ISPs alone, this time the digital user community would be a significant force.

The bloodbath turned out to be delayed. Every so often the possibility of re-opening the intermediary liability provisions of the ECommerce Directive was raised and then parked. The status quo was preserved in an uneasy stasis. Now, however, the bloodbath has arrived. Intermediary liability protections are under threat from many different directions. As platforms wilt under political pressure, the digital user community is becoming a louder voice in pointing out the importance for internet users of intermediary liability protections. Forecast: more blood on the walls.

Last, I said in 2009 that with litigation creaking under the expense of processing electronic documents, standard disclosure will be abolished for cases valued under £1 million

Standard disclosure is still with us, albeit in non-personal injury multi-track cases it is no longer the default option but one of a menu of possibilities. Processing large volumes of electronic documents remains a significant challenge, notwithstanding that techniques such as predictive coding (computer assisted review) have been around for the best part of a decade. Forecast: One day, perhaps.

Graham Smith is a Partner at Bird & Bird. His well respected Cyberleagle blog is at www.cyberleagle.com. 

Published: 2017-12-17T09:00:00

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