A NEW BREED OF CYBER-LAWYERS:"ICT LAW IS A GREAT LEGAL ADVENTURE"
As ICTs continue to proliferate, they also continue to become a target for government intervention and legislation. Within the legal profession ICT has been coming into its own as a specialist field and a number of firms have been established to cater to the growing demand for legal knowledge in this arena. Recent legislation aimed at controlling aspects of Internet and mobile communications, trade and copyright, to name but a few, means this exciting area is still in its infancy. And the lawyers involved with it are on the cutting edge of interpreting and advising on the new legislation.
Lance Michalson, head of Michalsons Information Technology Attorneys and one of the drafters of the ECT (Electronic Communications and Transactions) Act, trained as a commercial attorney, but wanted to do more than drafting contracts and negotiating deals for his clients. As the Internet started to emerge, Michalson, a self-professed gadget-junkie, saw his chance. "ICT law is a great legal adventure, applying existing laws to new technologies," he says.
Another lawyer coming from a commercial litigation background is Steven Ferguson, today a director of law firm Nicci-Ferguson Incorporated. Ferguson felt he was practising law in a saturated market with lots of competition. "It was starting to lose its shine and I wanted to get into something a little fresher and more rewarding," says Ferguson. "I did some research and saw that UCT [the University of Cape Town] was offering a one-year postgraduate diploma in e-law. After getting into the course, I realized that I had found my home. I then set up in partnership with another colleague and started practising e-law." Both UCT and UNISA (University of South Africa) offer postgraduate courses in e-law.
As one of the drafters of the ECT Act, Michalson spent a lot of time listening to the Parliamentary Portfolio Committee on Communications hearings into the Act. "This meant that I sat ... and listened to 'our baby' being tossed about between the politicians, who on a whim made substantial changes on party political lines alone," says Michalson. "At the end of a very harrowing process, I reached the conclusion that one does not want to know how laws and sausages are made!"
Meanwhile, Ferguson recently talked a researcher from a local soap through an IT contract that was going to be referred to in a future episode. "The issues around e-law are interesting in themselves as they don't just involve law, but also social issues," says Ferguson. "Take spam - does an email marketer have the right to send unsolicited material where he/she feels that it would be of value to the recipient? Can the music companies influence what technology is installed in our DVD players to stop counterfeiting? Does my boss have the right to read my personal e-mails at work?"
Basically, says Buys, firms need to aware of both the legal and technical aspects of a fairly wide range of e-laws. This includes complying with new ICT legislation, knowing the risks involved in using technology such as email and the Internet, proper ICT governance and complying with the technology and risk guidelines of the King II report.
Ferguson is cynical about some of the hype about compliance with new legislation (such as the controversial 'RIC Act' that is designed to regulate the surveillance and monitoring of communication) and the King II report. With the former, much of the media's attention focused on threatened penalties such as a R2 million fine or imprisonment of up to 10 years for companies failing to comply. They failed to mention that the Act, although signed by the president, has not yet been declared operational. As a result, argues Ferguson, many business people are more sceptical about e-law than before, right when its importance should be growing.
"I prefer talking about 'good practice' rather than "strict compliance," says Ferguson. "I do believe knowledge of e-law and ICT legislation is very important - not because it will help to avoid fines ... but rather because it will allow business to set up better systems to secure, manage and use information, which I believe is the most important business asset in the 21st century."
The cynicism Ferguson picked up on also goes back to the dotcom crash that saw ICT lose much of its glamour. This doesn't lessen the importance of technology though. "Businesses rely heavily on technology," says Michalson. "Although the law and technology are still strange bedfellows, and law often cannot keep up to speed with the changes in technology, the old issues [such as] software licensing, outsourcing of IT systems, software implementation and development work, especially around who owns software - as corporates hate to feel that they are indirectly funding a software house's R&D - will always be there."
And Ferguson is positive about the future prospects of this field of law. "The government has identified ICT as a crucial tool to be used in making our economy more competitive," says Ferguson. "Their commitment to bridging the digital divide will entail more laws being passed and this means more work for us. Although a large portion of our population in general is not computer literate, our business community is catching up with the EU and US insofar as their use of technology is concerned. This too can only mean good things."
Buys is similarly positive, saying that while once he believed e-law would develop in a separate branch of the law, he today appreciates the fact that technology affects almost every traditional branch of the law. He points out that this could range from matrimonial property, when a divorce suit is filed because a husband has been flirting online, to property law, thanks to online deeds registration.
While some feel legislation violates the freedom of information and communication the Internet has helped facilitate, the truth is that the commercialisation of the medium has resulted in the need for a range of security, privacy and compliance issues to be regulated. Enron and Parmalat have already shown that big business doesn't mean clean business. E-lawyers are playing a valuable part in ensuring that legislation pushed through by politicians is made known in the public domain. The free debate that follows, even amongst e-lawyers themselves, is a crucial element in protecting civil liberties and is in line with the spirit of the Internet.
Herman Manson is the editor of media.toolbox