INFORMATION TECHNOLOGY: An Introduction

Contributed by Matthew Lavy and Rebecca Keating of 4 Pump Court.

Technology is now critical to most industries and an integral part of our personal lives. It is quickly becoming difficult to list areas which are untouched by the influence of technology or are not set for a digital transformation.

As a result, IT law is now relevant not only to disputes in the tech sector itself but also to disputes across a variety of different commercial sectors, including banking and finance, construction, energy, shipping and telecoms.

This practice area continues to develop and adapt not only in light of legislative changes and developments in case law but also in response to advancements in technology and the new issues to which those advances give rise. The last year has seen developments in an abundance of areas including 5G, the internet of things, artificial intelligence, quantum computing, smart spaces, blockchain, cloud computing and robotics. These developments impact on industry practice and are affecting the nature of IT disputes and the advice, timing and representation that clients need. Practitioners increasingly need to understand the technology developments in order to advise their clients.

Despite the relentless march of new tech, the last year has seen several more traditional IT disputes moving their way through the courts of England and Wales. The 2017 to 2018 Technology and Construction Court report alone notes that 15 technology and IT cases were heard. This year the trend has continued, with a number of interesting IT disputes moving through the High Court. This includes the second trial in the Bates v Post Office group litigation which focuses on the Horizon software used across the Post Office network. The Court of Appeal has also recently provided guidance on the law on liquidated damages for delay in the context of provision of a software system in Triple Point Technology Inc v PTT Public Co Ltd [2019] EWCA Civ 230. Co-op Insurance v IBM, which has been widely discussed in the industry press, is scheduled to be heard early in 2020.

Data continues to be an important aspect of IT law and of industries more widely. In 2019 the Information Commissioner’s Office announced its largest ever fine against British Airways in the sum of £183.4 million, shortly followed by a fine totalling £99.2 million given to Marriott International.

Brexit remains a source of uncertainty in the field, as in many others. Engrained in aspects of IT law are the influences of EU law, including copyright, GDPR and database rights. An example of this is the implementation of the Data Protection Act 2018, which impacts multiple industries and is of particular significance in the IT sector. Over the coming months a close eye will need to be kept on changes in this area and forward thinking will be needed to critically assess contracts, processes and practice. Recently the EU also announced a number of new directives and regulations including the Open Data and Public Sector Information Directive, which aims to improve the availability and innovative use of public data, and the Cyber-Attacks (Asset-Freezing) Regulations 2019, which address restrictive measures to deter and respond to cyber-attacks.

In the area of dispute resolution, the Society for Computers and Law has recently announced its new adjudication procedure for the resolution of technology disputes. This offers a quick three-month procedure for the resolution of technology disputes, modelled loosely on the highly successful adjudication procedures in the construction world.

As ever, there is talk of law reform in light of the rapid developments in the world of technology. For example, the government recently published the Online Harms White Paper which sets out the government’s plans for measures to address harmful online content. Over the coming months expect to see increased discussion regarding possible regulation as a result of the contents of the White Paper. The Law Commission included autonomous vehicles, electronic signatures and smart contracts in the 13th Programme of Law Reform. The electronic signatures project has now been completed. The full report on autonomous vehicles is expected in 2021. The Commission has decided to pause its work on smart contracts in light of the work being undertaken by the LawTech Delivery Panel which has since been created.

The coming months will herald further advancements in technology, some predicted, others not. However, what is certain is that these advancements will precipitate changes in the IT disputes field and legal disputes on the whole.