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25 April 2013
Technology is not only revolutionising business it is also leading to new types of crime.
Stephen Dooley, computer lawyer at Oxford firm Morrell Peel & Gamelen cites the example of an American man who was charged with grievous bodily harm for leaving harmful messages on somebody else's answer machine.
Dooley is one of the few UK lawyers to specialise in the legal aspects of the Internet. His job, which has only been relevant since the emergence of the information super highway during the past two years, involves legal issues such as defamation, copyright infringement and patenting.
Two years ago such a specialist could not have existed and the wide client base which Dooley has built up reflects the fast-changing nature of this area of law.
With the emergence of the Internet, an increase in negligence claims against computer suppliers and the rise of computer misuse, computer law is becoming increasingly contentious. It is a field where a range of issues merge: intellectual property, competition law, criminal law, data protection, defamation and contract law.
Most law firms which practise computer law do not have a separate department, but rather a group or unit which draws on the skills of different lawyers.
Dai Davis, partner in charge of technology law at Eversheds, says: "Computer law is anything which other departments think is too technical."
Richard Thompson, head of legal at Hewlett Packard, says: "There is no such thing as computer law. It is simply a collection of legal principles which apply to computer business."
Partner David Barrett, head of IT and telecomms at Dibb Lupton Broomhead, says: "Technical publishing is a very good example of how difficult it is to pigeon-hole computer law. The legal issues involved are the same as with paper publishing but because of the technology involved it needs to be dealt with by two different departments".
The bulk of computer law is, however, still non-contentious contractual work. Davis says: "The bread and butter of computer law is the buying and selling of computers within commerce and industry."
Outsourcing projects are also becoming big business. In the public sector much of the drive for outsourcing information systems comes from political imperatives - the market testing initiative in central government or compulsory competitive tendering in local government and the National Health Service.
Dibbs has recently been involved in outsourcing projects for the Department of Social Security, the Inland Revenue and British Aerospace.
Barrett says: "Information systems are very much about business solutions, so the question is not whether hardware, software and services are being supplied but who has the implementation and operation of these business solutions - the computer supplier, the consultant or the client organisation."
The current commercial nature of non-contentious computer law means that although the large City firms were the first to take it on, today it is the more specialist commercial and industry-based firms that are winning most of the business. Barrett says: "These firms already have the commercial and industrial client base and so are more in touch with their needs."
Gillian Bull an IT consultant at London firm Tarlo Lyons, which deals with non-contentious computer law, says a commercial firm which does not specialise in computer law will suffer. "Luckily the partners at Tarlos had the vision to spot the potential IT market 20 years ago," she says. "We have developed our business and built up a client base, but I am worried that young lawyers think computer law is boring and are hesitant to go into it."
Barrett says: "Computer law is not obscure or nerdish. It involves international travel and the clients are always very clever people. It will become a growing part of the law and definitely a career worth pursuing for any potential lawyer."
In the past five years there has been a steady trickle of IT-related disputes before the courts. Well-known cases include the Salvage Association v Cap Financial Services (1995) where the former won damages of more than £622,000 over a problematic computer accounts system, and St Albans District Council v ICL (1995) where the council won £1.5 million damages from the supplier.
These cases and others have set a trend which David Wilkinson, partner at Ormerod Wilkinson Marshall, puts down to the recent growth of a more user orientated computer industry. "Ever since the recession the ball has been in the users' court," he says.
Wilkinson probably has more experience than any other solicitor in the UK of conducting computer dispute cases. Ninety per cent of his work involves computer dispute work, although he claims that only one per cent of his cases go to court. "I usually go for the mediation approach - the corporate banging of heads together. It's a bit like marriage counseling in fact," he says.
Specialists such as Wilkinson are emerging all the time in the computer law sector.
The Internet is a principle area of work for Dooley. "There is still a considerable degree of ignorance surrounding the legal implications of the Internet. My job is to minimise the risks for those using on-line services."
Legal issues include the copyright infringement by copying on-line databases and defamation via on-line bulletin boards and email. "People treat email as though it were like sending a letter, but it is really the equivalent of sending a postcard," says Dooley.
Most significant about the Internet is its universal nature. "One has to consider a multitude of rights when working with the Internet. What is good practice in the UK might be inadvisable in the US."
Internet law is still in its infancy. It is a research-based area of the law which currently draws heavily on US sources.
Dooley believes the range of statutes currently in force are adequate to police the Internet. "The risk is not so much that the law cannot cope with the Internet, but that the situations, while not novel, are in a different context from those in which they have previously been encountered."
Dooley is confident that the law can adapt itself to the continuing growth of legal issues within the computer world. "The law has always been capable of extending itself without its wholesale reinvention, which is what people expect and demand".