IRELAND can be proud of its success in attracting and adapting to computer technology. Unfortunately, our legal system has not kept pace with the growing influence of technology.
The law generally tries to deal with computer data and computer transactions by adapting rules and concepts originally developed to deal with paper records and paper transactions. Often these concepts are not appropriate in the electronic age.
Practitioners specialising in this area are extremely conscious of the need for the law to reflect modern industrial and commercial reality. As a result, leading commercial law firms have developed an expertise in computer law and the law of intellectual property.
The most pressing changes are called for in the Law of Evidence, a body of rules largely built up long before modern computers were invented. Once upon a time, a "contract" had to be either written or oral. Nowadays, a commercial transaction can be conducted without a word being spoken or a scrap of paper being generated. This gives rise to a host of new legal issues concerning such transactions. For example:
. When does a deal become binding?
. How do you prove an "electronic deal"?
. How do you "sign" a computerised contract?
. What standard terms apply to a computer transaction?
. Will the courts accept evidence generated by computer?
The Irish courts have, however, clarified some aspects. For example, in the course of several applications during major commercial litigation, rulings have been obtained on behalf of clients from the High Court concerning the legal obligation to disclose "documents".
During the legal process known as "discovery" parties to a case are normally obliged to provide copies of all relevant information held on paper. As result of these recent rulings, parties can also be compelled to provide, on disk, copies of all relevant data held on computer where appropriate. This decision has important ramifications for the way cases will be fought in the future.
When such issues have come before the courts, the resulting judgments have helped to clarify the legal status of the new technology and the way in which the existing rules should be applied to the new technology.
It is however, only rarely that the courts have occasion to address such issues, and the approach of the judiciary must necessarily be derived from traditional principles which predate computers. These are not always appropriate to the new technology.
It would give lawyers and their clients considerably greater certainty, and would further encourage the use of emerging technology, if the law explicitly recognised and catered for its arrival.
One particular legal issue which needs to be addressed is the evidential status of information held on or generated by computers. There is also a need to resolve definitively the contractual and evidential requirements to be met before transactions conducted on computer can be legally enforced. In this regard, the law in Ireland should be keeping pace with technology, not lagging behind.
Leading commercial law firms have taken a number of initiatives to encourage the use of technology in the conduct of commercial litigation in Ireland. These include the introduction of computerised databases and imaging technology used to organise and marshall the evidence in cases involving large volumes of documentation.
Nevertheless, there would be a great deal to be gained if the Irish courts were able to follow the British example. Certain specialist courts there have instituted rules which encourage all parties to large scale commercial litigation to exchange large documents and data on disk rather than on paper, avoiding the duplication of costs involved if both parties are forced to re enter the same data.
Furthermore, it is only a matter of time before some Irish courts will need to be equipped with computer screens for judge and jury in major cases, as seen in certain fraud prosecutions in Britain in recent years. Computers are by far the most effective way of intelligibly and efficiently conveying major quantities of information and it is important that the courts should make more effective use of such technology which has traditionally been restricted, by and large, to leading firms.