Predictions: No country for old men: Brexit Britain and Internet law

Professor Chris Marsden still thinks there will be a mini-cyberlaw boom as we adjust to the post-Brexit era.

>2020 was worse than anyone could have predicted: over 80,000 dead prematurely in the UK in 8 months, a global pandemic that has killed 2million and infected 50-100million more, many with ‘Long COVID’, the crushing weight of economic recession. Still, at least 2021 will be better, won’t it? I stick to last year’s prediction: Brexit will actually create a mini-cyberlaw boom for those of us giving the grim news of Brexit’s damage to clients from the United States and European continent.

It has been a hideous year even for those fortunate enough not to have contracted the virus. If ever there was a New Year for self-reflection, it is now. For lawyers not required in courtrooms, many may have had a less hideous pandemic – working from home, rather than on frontline jobs which have taken so many in the BAME community. But COVID has touched all families, with long COVID affecting up to one in three people who have suffered the illness, severely worsening the social care crisis for the million dementia sufferers and their carers, and with close to 100,000 excess deaths in the elderly. It is still all incomprehensibly awful. 

So, predictions – with greater humility required than ever before. COVID is not going away, and will dominate 2021, along with Brexit – these are now our ‘new normal’. All depends on the success of mass vaccination and travel bio-passports (with their attendant data protection consequences) – digital “test and trace” was a disaster demonstrating the incompetence of central government, with a special place in hell for the smartphone app. 

I said a year ago that the “rest of the year will be a secretive psychodrama as the British government realizes that the European Union holds all the trade negotiation cards. For service industries like law firms, near-panic and a rush to Dublin and Amsterdam will follow in 2021 if not complete by end-2020.” I do not see a reason to change that prediction, nor my second: “In digital law, the UK will stumble towards an EU declaration that its Data Protection Act 2018 does not offer adequate protection to EU citizens’ data.” With luck, that prediction can be repeated again at the end of 2021 as the wheels fall off inevitably but slowly.

I was sadly right about the presence of algorithmic disinformation and its non-regulation. To repeat: election law is written by winners, leading to a prolonged period of uncertainty and stasis in the single most important element of Anglo-American democracy: the electoral process itself. That was reinforced by Michael Gove’s decision to do nothing about UK electoral disinformation, leading us to this “infodemic” of fake news about vaccination. I can barely imagine the nonsense that the Senate will cook up in 2021 after Trump’s annus horribilis trying to destroy United States democracy. 

I was, however, wrong about the timing of “Some kind of ‘duty of care’ for online platforms will stagger into law” – we await 2021. It has been overtaken by the Digital Services Act of the European Union, which will be legislated in 2021.

One prediction I am proud of, and is announced in the Digital Markets Act of 15 December 2020: “Expect the real action on interoperability as a solution to AI dominance to take place in 2021, as the importance of Machine Learning survives the ‘Artificial Intelligence’ hype cycle being burst.” I am chairing an SCL seminar on 16 February on exactly this topic, and that will be a fascinating and invaluable event – I predict…

A reminder to finish of how fantastic you all are, and how much your expertise will be valued in the years to come. Internet regulation in the UK will become messier and harder, especially in 2021. Your clients need your expertise more than ever!

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Professor Chris Marsden, University of Sussex

Published: 2020-12-15T16:00:00

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