The face that launched a thousand quips

By | 8th March 2011

A young man, about to leave his current employer and embark on a new career, posed an interesting question last weekend. As a result, the assembled company, duly fortified with a large jug of pre-prandial Bloody Mary, spent some time considering who owns an employee’s LinkedIn contact network, doubtless compiled with the knowledge and encouragement of the employer and in the employer’s time, when the employee decides to move to pastures new.

Leaving aside express provisions in the contract of employment, the “legal” view was that, in all probability, the employer owned the network on the basis that it is generally accepted that work created during employment belongs to the employer and not the employee who created it.

The “other” view was that, if that were the case, the law lagged behind the reality of modern usage of social networking sites such as FaceBook and MySpace. These sites are in the public domain (subject to password protection in the main) and the courts, at any rate in the US, have tended to agree that the contents of such sites are not confidential and are potentially disclosable in litigation. (See Macmillan v Hummingbird Speedway Inc.) It seems to me that that view presupposes that the networks created are the property of the individual and not that of their employer.

I accept that there is more to the discussion than that and, in any event, despite our very best endeavours we did not come to a settled view about the correct answer. Fortunately I do not have to give a learned opinion on the point but the question illustrates the changes which are taking place in our daily lives with the growth of networking sites and the way that a large section of the population use them to communicate in preference to letters, emails, tweets and devices which are old hat such as mobile phones! Discussions with a number of people at the recent Legal Tech conference in New York showed that this whole area is becoming more and more mainstream and both judges and lawyers are having to grapple with the impact made by the social media sphere on a range of issues such as tweeting in court not only by journalists and witnesses but also by jurors.

The unrest which has erupted across the (largely North African) Arab world, (although there have been rumblings in Iran as well) has to some extent been fuelled by the use of media such as Twitter. Indeed, as one commentator remarked of Libya’s Gadaffi, one effective way of curbing unrest is to turn off the internet. I suspect that Gordon Brown wishes he had thought of that earlier because at least he would have been spared the embarrassment of his Home Secretary claiming on parliamentary expenses for her husband to rent two pornographic films on a pay-per-view channel. What possesses her now to make a documentary on the porn industry escapes me particularly as we have been treated to a number of interviews in the press where she makes the extraordinary admission that, despite being the minister in charge of the legal framework which operates around the porn industry, she never knew that the internet was so full of porn! Given her state of knowledge or lack of it, the programme is hardly likely to be revealing!

Oh dear! At least she lost her seat at the election but personally I had hoped we had heard the last of Jacqui Smith. We must be thankful that the BBC had the sense not to appoint her as a trustee.

On March 27th this year the population of this country is to be subjected to a wholly unwarranted intrusion into their private lives. As Daniel Hamilton, campaign director for the civil liberties group Big Brother Watch said:

At 32 pages, the 2011 Census includes intrusive questions on your proficiency in English, your health, when you last worked, the identities of your overnight guests and the type of central heating you have. The Government has no need – and no right – to know this information. This census is a monumental waste of time and money.

It is certainly going to cost a lot of money. Estimates place the overall cost at a staggering £487 million, added to which the Government plans to spend £4.5 million on a national advertising campaign. 26 million households will receive one of the 33 million census forms which have been printed and 35,000 field staff have been employed.

The Government, struggling to pay off the deficit built up by the utterly disgraceful profligacy of Jacqui and her colleagues (including the aptly named Balls), is adamant that spending nearly £500 million is vital to enable the Government and businesses to plan local services such as schools, roads and healthcare. I am unsure how knowing with whom I sleep on the night of March 26th is going to help them with any of that. I implore any Ministers reading this blog (well, you can only hope!) not to run the hoary old argument that it is more expensive now to abandon the whole idea than to proceed with it.

I wonder what will happen to all this information when/if it is collected and who owns it. How accurate will it be? How many people will we discover are Jedi Knights? Where are the Information Commissioner and the Taxpayers’ Alliance who should both be up in arms about the unnecessary expense and intrusion?

Add to all this the acknowledgment that it is impossible to count everyone, that it is becoming increasingly difficult to “get responses from inner city areas” (why? and what are “they” doing about it?), that ten years ago upwards of 3 million people failed to return the form with only 38 successful prosecutions resulting and you can readily accept that this is a monstrous waste of time and money. Nor is that the end of it; we taxpayers are paying to produce guides to the census in, amongst others, Igbo for Nigerians, Akan Twi-Fante for Ghanaians and Shqip for Albanians. Add this all together and you have a waste of public money on a Brown/Ballsian scale.

To make matters worse, if that were possible, the Government already knows the answers to many of the questions to be asked because the information is already available on a variety of Government databases (unless, like the case of the DSS, they have all been lost). I imagine, however, that in Kafkaesque style, the Government will say that they cannot access that information because to do so risks infringing the human rights of the people whose information has been accessed.

Another case for the Supreme Court to wrestle with the European Court of Human Rights following the debacle of votes for prisoners, the sex offenders register and the threat to reject the fundamental rules of evidence enacted by Parliament to ensure that criminals do not escape conviction. Perhaps I should just be away from the country on C Day.

On a positive note, I have little doubt that, as the sources of and accessibility to electronic data increase, the technology will follow. Evidence of this is all about us. Only since last autumn, US technology firm Index Engines has helped to revolutionise the arguments around proportionality in relation to collecting and searching data on backup tapes, previously an almost completely no go area for lawyers who were able to plead with confidence that the exercise involving restoration of tapes was too expensive and too time consuming. No longer!

Today our Smart Insourcing Team of LPC graduates is using Equivio Relevance technology to make it easier and quicker to review a large volume of data quickly and cost effectively for the end client and we are currently recruiting to double the size of the team. Another change from a few months ago and one which our clients appear to have embraced.

The trick for lawyers in today’s market appears to me to be to remain open to the changes affecting all aspects of the profession and practice of law to the benefit of their clients. What is not a good idea is to try and continue operating in ways more suited to the 1990s and before. Happily, more and more lawyers and judges are getting it! What I mean by that is that this whole field of electronic disclosure is here to stay and people are starting to treat it as mainstream and normal and to realise that (apart from how the technology works, which in some cases is really clever and sophisticated) it is not that complicated, need not take long and need not cost a ton of money. Anyone who tells you otherwise is being economical with the “actualité” as one former politician memorably remarked.

Finally, on another positive note, you may know that authors John Bunyan (Pilgrim’s Progress), Daniel Defoe (Robinson Crusoe) and the poet William Blake (Tiger, Tiger, burning bright) are all buried in the non-conformist burial ground at Bunhill Fields in the City of London. Established in the 1660s, the fields are a convenient shortcut from City Road to Bunhill Row and one I use regularly. In an announcement which could not be further removed from the horrors perpetrated by dying regimes around the world, or the monstrous intrusions of the forthcoming census, English Heritage has confirmed that the Fields are to be upgraded to Grade 1 listed status. I have always thought the area needed to be smartened up and the gravestones cleaned and I hope that this will now happen and that the graveyard will become, in the words of David Garrard of English Heritage a place of “solace and beauty in the middle of our busy city.”

Just in time for the arrival of spring? Well you have to hope, don’t you?

Photo credit © Steve Punter