Lawyers must not run scared of technological innovation – some law is better than none.
Perhaps the most unpleasant situation for any lawyer to face is where an unlawful act has been committed that cannot be solved by the law. During a discussion on children’s understanding of privacy with a well-known charity, a volunteer posed such an experience.
He described a call from a teenager who had fallen victim to ‘sexual blackmail’. This vile practice sees an individual trick a young person into performing a lewd act in front of a camera. The perpetrator then demands payment on pain of publishing the footage. This dilemma – find an unlikely sum of money or face humiliation – is blamed for several young suicides each year.
The question was: what should a counsellor advise a child in this situation? The answer was to contact the police. The response from the volunteer was that the police force in question ‘wouldn’t look at it’. So it came as little surprise when HM Inspectorate of Constabulary (HMIC) reported that police forces ‘do not have sufficient information to establish and understand the threats, harm and risk associated with cyber-crime, which means that they are not in a position to deal with it’.
A week before, Lord Neuberger addressed the Hong Kong Foreign Correspondents’ Club on challenges to the rule of law. He opined that ‘astonishing’ developments in IT mean privacy and broader communications laws risk undermining the rule of law if they are unenforceable and so may need to be reconsidered.
These very different issues reflect a creeping hopelessness infecting the law in the face of technology, a sense that without perfect answers no other option is good enough and we probably should not bother. Except of course, as Gandhi observed, the law reflects our codified ethics, the consensus on that which we will seek to prevent.
So while the position of a young person being blackmailed is rarely comparable with concerns over private material, the sense of legal frustration offers a parallel that brings us circuitously to Google, Spain and the right to deletion of data.
The operation of that ruling only really makes sense when you consider how we use ‘search’: it is our entry-level due diligence system, biography and CV rolled into one. We use it for those we meet and those we plan to work with, and ‘search’ is often the first and last tool we use.
Law around technology can be messy but it can still be effective. The long fight by rights owners in the entertainment industry has not eradicated illegal downloads of copyright works or captured every territory, but it has moved the creative industries from the mid-90s chaos of the original Napster to the lucrative era of iTunes and Netflix.
So to criticise the deletion of links from Google because you can get to the content in other continents or by circumventing controls is not really the point. The law of privacy, with its varieties of intrusion beyond the availability of private information in the public domain, has moved on from the ridicule directed at the Spycatcher proceedings.
And for those harmed by damaging content placed online by others, is it not better to make a problem less acute and less damaging in the territory in which they live, even if it cannot be eradicated altogether? It may not be a perfect answer, but it is better than lawyers having no answer at all.
That is not to say the law is adequately meeting the challenges of technology; clearly too much is piecemeal and localised. As for policing, the Theft Act gives good law for dealing with blackmail, but as HMIC notes, police forces need the resources, knowledge and will to apply it to crime involving the internet. As for the rest, it is perhaps wishful thinking that common values in online content might be realised internationally, but until then it seems a fair bargain to respect each territories’ laws if you want to sell adverts there.
But it is unrealistic to expect the law to anticipate technological innovation; the target should perhaps be the pace at which it catches up.
After all, if we choose instead to just not have law in these areas, what does it say for our society’s ethics?
Chris Scott is a partner at Schillings