Lee Gluyas and Leah Grolman with some predictions on seven key tech law issues that will generate contention and disputes in 2021 and beyond.
1. Robots for patient treatment and care
Covid-19 has exposed a need for additional support in hospitals and care homes, including support that does not put doctors, nurses and carers at risk of infection. We are likely to see greater investment and development of surgical robots and care robots (including those used for communication with patients at a distance). The introduction of robots in these settings is likely to cause some debate about how they are to be classified and the impact of their application on the duty of care owed by medical professionals.
2. Technology for the environment
Environmental applications of technology have been on the rise in 2020 and we expect to see a continuation of this trend in 2021. Innovations born out of the covid-19 pandemic are likely to be here to stay. One of our favourites is the National Trust’s use of drones to conduct the annual census of seals on the Farne Islands because fewer rangers could attend the Islands.
While devices such as the intelligent in-home thermostat Nest, which adjusts temperature settings to increase energy efficiency, are old news, the use of AI to monitor, adjust and enforce consumption of energy and water are likely to become widespread amongst organisations in the public and private sector trying to meet environmental targets. For example, we are likely to see increased uptake of software that utilises AI to predict demand and then optimise logistics planning so as to minimise carbon dioxide emissions. Naturally, with such technologies comes a risk of inaccuracy and litigation.
3. IT procurement and contract disputes
Following a rush to procure new hardware and software solutions as the country went into lockdown, we expect that 2021 will present an opportunity for many businesses to reflect. We expect to see difficult negotiations, and potentially disputes, as organisations seek to unwind rushed, haphazard procurement in the first half of 2020 and enter into contracts for solutions better suited to their needs in the longer term. For example, businesses may focus on the security of video conferencing solutions and other remote-working acquisitions, which were the easiest option to purchase at the time even if not the most secure.
We also expect to see an increase in IT contract disputes as a decline in economic conditions leads businesses to pursue end-of-contract claims in the hope of recovering losses or getting a better deal via a negotiated settlement, and an acceleration in the trend towards scalable cloud based services.
4. Data protection class actions
Class actions based on contraventions of the GDPR will continue to proliferate, especially if the Supreme Court upholds the Court of Appeal’s decision in Lloyd v Google  EWCA Civ 1599 (granted permission to appeal on 11 March 2020).
5. Technology-focused regulation
From potential regulation of large online platforms (“Big Tech” or “gatekeepers”) over concerns about privacy, misinformation, facilitation of crime, data monopolies and other anti-competitive conduct, to whether “loot boxes” in the video gaming world should fall within the Gambling Act 2005, next year promises to be a year full of debate around the scope of proposed laws.
6. The courts’ understanding of software
We expect that the European Court of Justice will give a ruling in the matter of Computer Associates (UK) Ltd v The Software Incubator Ltd which was referred by the UK Supreme Court on 27 May 2019. The High Court held that software is “goods” and the supply of software under a perpetual licence a “sale of goods” within the meaning of the Commercial Agents Directive (Council Directive 86/653/EEC of December 1986). The Court of Appeal, in a unanimous decision, overturned the High Court’s decision. The European Court of Justice’s decision is likely to have ramifications for the way in which the courts understand software, i.e. as a “good” or a “service”, though strictly the ruling is likely to be specific to the meaning in the Commercial Agents Directive. This legal classification of software is a question that arises not only under the Commercial Agents Directive but under other instruments, such as the Product Liability Directive.
7. Legal practice and technology
Finally, we suspect that some adaptations during covid-19 will be here to stay. Hearings of interim applications by video conferencing, wider uptake of e-filing by the courts, electronic execution of documents, and meetings, training and other events from the comfort of our homes: we predict that for many, technological solutions adopted in 2020 will feature more in 2021 (and beyond!)
Lee Gluyas is a partner at CMS who specialises in managing disputes in the technology and telecoms sector. He is a member of the Society of Computers and Law and can be contacted on +44 20 7524 6283 and firstname.lastname@example.org
Leah Grolman is an associate at CMS with experience in IT and procurement disputes. She is a member of the Society of Computers and Law and can be contacted on +44 20 7367 3607 and email@example.com