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JILT 1996 (1) - Ian Lloyd

Communications and Law '95

The Society for Computers and Law Conference
Peterhouse, Cambridge, September 1995

Dr. Ian Lloyd
University of Strathclyde

1. Introduction
2. Day One
3. Day Two

Reproduced by kind permission of the Society for Computers and Law.
Originally published in Computers and Law, October/November 1995.


1. Introduction

It is received wisdom in the theatrical world that an actor should never appear with children or animals. Similar advice might be offered in regard to the use of computer technology as a feature of a conference presentation. If the technology works, the results can be so impressive as to overshadow mere human performances; if it fails to work, whilst a computer screen is incapable of blushing, the same cannot be said of the human scapegoat.

The sight of the enormous tangle of wires spilling out from the stage of Cambridge?s impressive Peterhouse Theatre (sure in contravention of the principles of health and safety legislation) as the sizeable audience gathered for the start of the SCL?s two-day conference raised considerable doubts, both as to whether the technology would work and as to whether the legal experts gathered to make presentations would prove equal to the task of manipulating both mouth and mouse simultaneously.

In the event, all of the machines, and most of the humans, behaved impeccably. Introducing the conference, Neil Cameron, Joint Chairman of SCL, suggested that the existence of two chairmen had dictated that the conference extend over two days so as to give each office holder the opportunity of chairing the conference. As became clear during the session, the impact of the Internet on both practice and the law is such that even two full days of presentations could only scratch the surface of the topic.


2. Day One: Use of On-line Services and the Internet

Day one of the conference was (following a speech of welcome from Richard Bamford, the President of the Cambridgeshire and District Law Society) devoted to consideration of the impact of electronic resources and communications upon legal practice. The session started with an entertaining and informative presentation from Robin Widdison, Director of the Centre for Law and Computing at the University of Durham. He ventured boldly into the realm of cyberspace to demonstrate some of the massive range of legal materials available both in the United Kingdom and internationally, as well as more esoteric terms such as a ?irtual tour?of the splendours of Durham Cathedral.

Moving from the sacred to the profane, presentations were made by Andy Rudall, Christopher Millard and Nigel Miller explaining some of the commercial and other reasons why their firms had determined to develop a presence on the Internet. A point which came over strongly in this and in related sessions was that Web technology provided an almost level playing field in that small and medium-sized firms may for a modest outlay produce results as impressive as those of much larger firms. To a perhaps lesser extent, the proliferation of electronic resources also allows smaller firms to compete in the province of law libraries. In a paper from Susan Ellaby on the ?irtual Law Library?a move was charted away from the strategy of holding copies of materials in tangible form to one where electronic information could be accessed as and when the need arose. Systems such as Lexis and, increasingly, the legal resources available over the Internet, allow individuals and small firms access to a range of materials that previously was restricted to the largest firms and libraries.

The computer has now been with us for the best part of half a century. To that extent, electronic resources may be considered well established. It has been the marriage between the computer and the communications system which drives many of the recent developments. In what was originally described as a panel session but was transformed into a bravura one-man performance, Neil Cameron moved effortlessly from Chairman to presenter to outline a vision of a seamless integration between a law firm? internal resources and those available in the big, wide, electronic world. Although some concerns were expressed about the security implications of allowing such a linkage ?the fear of infection from computer viruses being very pronounced ?there seems little doubt that such developments must come to pass. Two further papers, from Susan Singleton and Simon Stebbins, demonstrated how communication technology provided benefits to practitioners from very different areas of the legal spectrum. For Susan Singleton, basic developments such as fax machines and mobile phones enabled a one-person firm to compete effectively in fields ?competition and intellectual property law ?which are often regarded as the province of larger organisations. Simon Stebbins, speaking as a partner in such a large firm, could almost have sub-titled his talk ?ravels with a laptop? The technology is now available for solicitors to make contact with their office when travelling, even to remote corners of the globe but, as was pointed out, there needs to be a recognition of the needs of the mobile worker and that some of the efforts presently directed at establishing and maintaining internal networks should be channelled to support mobile workers who require the office to be brought to their hotel rooms in foreign countries and different time zones.

The afternoon session continued the theme of communications but in a perhaps more traditional sense, examining the role which electronic systems might play in traditional relationships between solicitors and clients, between the branches of the legal profession and within the ranks of the judiciary. Martin Telfer described the benefits which might be obtained both by solicitors and their clients through the use of electronic communications; these might extend even to the extent of allowing the latter direct access to their own files. Although significant issues of security and confidentiality were involved, Martin was confident that the techniques existed to allow at least as much assurance to be given that electronic communications would remain secure and confidential as is the case with more traditional forms of correspondence. Speaking on developments within the Bar, Laurie West-Knight, Chair of the Bar Working Party on Email and IT, suggested that it was misleading to speak in terms of the legal profession as a monolithic whole. His committee? investigations had revealed that IT usage amongst sets of chambers varied from extremely extensive and sophisticated systems to situations where the ball-point pen might be regarded as dangerously advanced technology. Overall, he suggested, there remained a need to bring home to members of the Bar the advantages of electronic communications, particularly between themselves and instructing solicitors. This point was echoed by James Behrens, presenting the report of the SCL? Working Party on Communications for Lawyers. The working party had conducted a survey of practice, the results of which suggested that although large and medium-sized firms make extensive use of IT, the message of the benefits obtained thereby has yet to percolate to many smaller firms even though, as has been discussed above, this may be the sector which can obtain most benefit from the application of IT.

The stereotype view of members of the judiciary has little place for their use of technology. Judge Michael Mander, Chairman of the JUDITH project, demonstrated that, as with so many stereotypes, the reality is considerably different. Approximately one-third of full-time judges, it was suggested, were either computer-literate or rapidly becoming so. Extensive use was being made of the FELIX system which provided an electronic forum for discussion between judges and support was expressed for the extension of the use of electronic resources to provide judges with, for example, information on the range of sentences previously handed down for offences of a particular kind. Such resources, it was suggested, could and should be made available also to counsel and other members of the legal profession. Day one concluded in rousing style with a keynote address from Robert Bamforth of Sun Microsystems. The future, it was emphasised, is communications. Although the Information Superhighway might more accurately be referred to as an Information SuperFootpath, capacity constraints would be overcome. In many instances, electronic communications would not merely substitute for existing media but would create a new and increased level of interaction. The Daily Telegraph, for example, has established and electronic version of the newspaper which appears on the World Wide Web. This is accessed by some 15,000 users a day. Perhaps more significantly, these users generated some 100 letters to the editor. The established version has about a million readers who write 300 letters a day. Clearly, there is more interaction between publisher and readers in the electronic sector, a factor which has proved attractive in terms of obtaining advertising revenue for the Electronic Telegraph. In the near future, systems such as Sun? ?ot Java?will both improve the quality of the material available over the WWW and allow users, for example, to book airplane and theatre tickets without leaving their home or office ?or using the services of a travel or booking agency.


3. Day Two: Law and Regulation of On-line Services and the Internet

During much of the first day, considerations of intellectual property, information and the regulation of the Internet hovered above the discussion like spectres at a feast. The second day of the conference, which was ably chaired by the other Co-Chairman of the SCL, Christopher Millard, sought to provide some of the answers. As Christopher pointed out in his opening remarks, there is perhaps no sector of activity which is more regulated than electronic communications. Spanning the globe, the Internet is subject to the legal system of every country in the world. Rather like the air, however, electronic communications pay little regard to national boundaries and presentations from Michael Silverleaf and Harry Small identified some of the jurisdictional problems that abound in cyberspace as well as the legal difficulties which may beset a party seeking to enforce a claim, for example, of copyright infringement.

Continuing the liability theme, Graham Smith identified the need for firms to adopt policies relating to the use of electronic mail. The ease and speed with which messages may be sent causes many users to equate electronic mail with forms of verbal communication. In the legal sense, however, there is little doubt that the more appropriate link is with other forms of writing. As was discovered by Oliver North in the United States, electronic mail messages have a long life span and copies may surface from the depths of some file server at the most inopportune moment. At a more general level, Graham Nicholson and Ian Lloyd discussed some of the legal liabilities which might attach to the provider of an on-line service. These might arise under a variety of headings, defamation, intellectual property, criminal law and data protection being significant examples. In part the issues arise from the provider? own actions in making material on-line. The nature of the WWW is such, however, that providers will typically also provide links to other sites and the materials available thereon. This raises complicated questions about the extent to which a provider might be held liable for providing links ?and perhaps encouragement ?to users to access infringing material held by a third party.

From its origins in the realm of academe, the Internet is increasingly being used for commercial purposes and transactions. One recent development has been the introduction by the service provider CompuServe of an on-line shopping service. Paul Stanfield demonstrated how a user might order a dozen red roses (and compose an accompanying message) without going near a florist? shop. Although systems such as this offer apparent advantages of speed and simplicity, this may conceal legal problems of some complexity. Chris Reed dived into these difficult areas with some gusto in speaking on the problems of contract formation over the Internet. Even a seemingly simple transaction between parties located in the same jurisdiction may raise complex choice of law questions when electronic communications may wend their way around the world, being copied from one mail server to another. The established rules for postal and telephone contracts may not be entirely appropriate for the new era.

It is not unusual for conferences to decline towards an inglorious ending. This was most definitely not the case with Communications and Law 95. The final presentation, ?he Second Big Bang, When the Internet meets the law (and the law figures out what it means)?was given by Andy Johnson-Laird, appearing live from the West Coast of the United States. Technically, the presentation was an impressive demonstration of the manner in which modern communications facilities (and relatively inexpensive hardware) permit transmission of virtually broadcasting quality. In terms of its substance, the presentation provided a superb summation of the issues covered throughout the sessions. The Internet is changing the world as we know it. National frontiers are becoming obsolete. cherished legal notions such as the concept of exclusivity associated with copyright are no longer tenable. Governmental control over the communication of information is a thing of the past. The world is changing at almost frightening speed and, if the conference raised as many questions as it provided answers, it sent delegates away with much to ponder and discuss.

Well organised by Ruth Baker and Caroline Gould and chaired throughout with efficiency and humour, Communications ?5 deserves to be regarded as a significant success.

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