The Year 2000 Problem: Introduction
In case there is any doubt about the likely effects of the Y2K bug, a recent report by Cap Gemini America suggests that 72% of corporations and businesses surveyed have experienced a Y2K related malfunction in the first quarter of 1999. So the doom mongers perhaps have a point. There are reports of groups from St Johns Wood to Virginia already making plans to stockpile essential supplies and makers of survival packs are finding new markets. On the other hand, the Action 2000 web site <http://www.bug2000.co.uk> seems to suggest that the likelihood of Y2K related disruption in the UK is small with the possible (but not insignificant) exception of the health and emergency services.
History has shown that one single event can often cause waves and ripples on the social and legal order for many years following the event. Many lawyers will be familiar with the cases which ensued for years after the closure of the Suez canal. At a more general level, chaos theory predicts that small events may have dramatic impacts on whole systems. For example, the earthquake in Kobe, Japan was the trigger for the collapse of Barings Bank. In the present situation, the single event of entry into a new millennium may create just such a perturbation but on a truly global scale. Of course computer systems can malfunction for multifarious and sometimes unexpected and surprising reasons. What is unique about the millennium bug is that it is capable of affecting all systems and all sectors whether industry, commerce, education or public administration and services. There is no natural immunity. Because of its uniquely pervasive nature, it brings together a number of liability issues which have been both of concern to practitioners and also the subject of academic debate. In addition, the next generations of computer software are likely to create even further challenges to the law before the present ones have been satisfactorily resolved.
This JILT special feature is the product of a research colloquium made possible by the sponsorship of BILETA <http://www.bileta.ac.uk/>. It brings together papers by academics from a number of legal disciplines and from computer science to explore some challenging issues of contemporary significance for computer law using, as a starting point, the potential consequences of the millennium bug. In relation to this problem and difficulties created by even more advanced technology, the legal issues still reflect those being encountered every day on a smaller scale and less novel scale. Whilst the scale of the millennium is itself unique the legal points being addressed in the proposed work will be of continuing relevance even outside of the significant legal challenges created by the year 2000 problem itself.
In the first instance, disputes arising from the failure of computer systems will be resolved by recourse to the techniques of private law: by actions in contract, product liability, negligence etc. Robert Bradgate considers the law of sale and supply of goods as the source of a remedy for losses incurred as a result of the bug and uncovered some difficult questions of economic and social policy in deciding whether or not it was just to impose liability while Elizabeth Macdonald discusses the extent to which exemption clauses might be effective in limiting contractual liability. Geraint Howells considers the implications for product liability law of the millennium bug and concludes that 'this may be one instance where the move to strict liability from negligence may make a difference'. Negligence claims against those operating computer systems in particular may be complicated by issues of contributory negligence perhaps due to lack of awareness or failure to heed warnings, possibly even to government intervention. Diane Rowland looks at the culpability of the computer industry and software designers themselves as they strive to define themselves as a profession for the 21st century.
Such is the concern over the possible effects of the millennium bug that their have been attempts in many jurisdictions to modify these private law rules by legislative provisions specific to the Y2K problem. These have either attempted to restrict liability in cases where there is no personal injury or to introduce requirements for information provision concerning Y2K compliance. Celia Wells analyses the potential criminal liability of incorporated bodies in the wake of millennium bug failures concluding that, in any case, those affected may seek 'solace in the criminal law' if there is any question that those responsible have not addressed the issue.
All sectors of commerce and industry seem to have made some efforts to ensure Y2K compliance. Andrew Campbell considers the response of one sector on which many of the others may depend: banking and financial administration. Banks have, arguably, led the way in preparations for the millennium and a successful implementation of their policies may have the added advantage of demonstrating a genuine commitment to customers.
At the technical level, Gordon Hughes points out that computer-based systems are 'almost certain to contain design errors which could cause malfunction or failure' and calls for engineers, scientists and lawyers together to 'develop a set of decision support tools which could facilitate a just legal framework which recognises the uncertainties in the processes involved.'
Although cases relating to the millennium bug have already been filed, settled and dismissed in the US, it is difficult to predict how much litigation will have this cause at its roots. John Peysner believes that, on this side of the Atlantic, threats of a litigation explosion are not based in a realistic evaluation of all the necessary ingredients and that 'the lawyer driven apocalypse suggested by the merchants of hype is unlikely to happen.'
There is not much longer to wait now to see whether the prophets of doom or the eternal optimists should have been heeded. But in the event that the Y2K bug does bite strongly, associated claims could have a dramatic impact on the socio-economic climate at the dawn of the next millennium. Although subjects covered in this issue are of obvious and immediate topicality, the contents of the debate will continue to be of relevance for a considerable length of time and the legal issues will remain of continuing significance beyond the year 2000.