Articles & Podcasts

Regulating AI: Can the law keep up?

AI is transforming legal practice faster than regulations can evolve, but what does that really mean for lawyers? In this episode of The Law WithAI™ podcast, Paul Schwartfeger joins Will Charlesworth to explore: The AI Divide in Law – Is AI a revolution or an evolution? Where do you stand? Regulating the Unregulatable – The UK is taking a different approach from the EU’s AI Act, but is it the right one? AI as Your Legal Assistant...

Generative AI in legal practice: Balancing innovation and responsibility

Discussions about artificial intelligence (AI) in legal practice tend to be deeply polarised. Some lawyers believe AI is the future of the profession, set to transform everything from legal research to drafting and case strategy. Others see it as unpredictable, risky and potentially even dangerous. As with most technological advancements, the reality likely lies somewhere in between. AI is neither a magic bullet nor an existential threat—it is...

AI and the law: Reflections on a complex relationship

Artificial intelligence has captivated our imaginations, revolutionised industries and provoked ethical and legal debates that few could have predicted a decade ago. In this series, we have explored the intersection of AI and the law, uncovering both the promises and the perils of this transformative technology. As the series draws to a close, the big question remains though: Is AI an existential threat, or the saviour of mankind? This isn’t...

Copyright or Copywrong?

The intersection of artificial intelligence and intellectual property law presents unique challenges. Existing IP frameworks, while reasonably robust, were not designed with AI’s unique capabilities in mind. As AI systems increasingly generate creative outputs, rely on intricate algorithms and process vast datasets, questions around ownership, licensing and protection emerge. These issues underscore the need for innovators and legal...

Deepfakes and synthetic media

The advent of artificial intelligence (AI) has brought profound advancements to numerous industries, from healthcare to entertainment. However, with rapid innovation comes a darker undercurrent: deepfakes. These AI-generated synthetic media creations convincingly mimic real individuals with startling accuracy. While they can be entertaining and beneficial in controlled contexts, their misuse presents significant legal and ethical challenges...

Guarding against AI bias

Legal concerns about potential bias in artificial intelligence systems arguably grow in significance as AI becomes more integrated into business operations and our daily lives. Bias is a tendency that can lead to unfair or skewed outcomes, favouring some groups while disadvantaging others. When it comes to artificial intelligence, these biases—be they subtle or stark—have serious implications in the legal landscape. As businesses...

Misleading machines: The legal perils of AI hallucinations

As artificial intelligence becomes increasingly embedded in our daily lives, the legal concerns surrounding AI “hallucinations” are gaining significant attention. AI hallucinations refer to situations where an AI system produces outputs that are incorrect, misleading, or entirely fabricated, while presenting them as reliable. The phenomenon can have profound consequences when they occur in high-stakes environments, such as...

Definitions matter

Definitions provide the foundation for how we regulate, enable, enforce against, understand and use things throughout our daily lives. But how do you define something as abstract as AI? Those familiar with the UK’s Dangerous Dogs Act 1991 may know it has faced some criticism over the years owing to its breed-specific focus. Challenges have arisen when trying to classify canines under it, as initial efforts to ban Bully XL dogs proved, and the...

(Un)reasonable endeavours: force majeure clauses and offers of non-contractual performance

Can a party be required to accept an offer of non-contractual performance so as to overcome what would otherwise be a force majeure event? In its recent decision in MUR Shipping BV v RTI Limited, the Supreme Court held that the answer to this question was “no”, finding that the Appellant was not obliged to accept an offer by the Respondent to pay in euros where the contract provided for payment in USD. While the court’s...

Eleventh hour adjournment applications

Cooke, Young and Keidan featured an unusual case in its commercial disputes newsletter this month, that of Wright and others v Chappell and others [2023] EWHC 2873 (Ch), in which I appeared for the Applicant, Mr Dominic Chappell, the purchaser of the now collapsed retail chain British Home Stores (BHS). In its article, originally written for LexisNexis, CYK partner John Felce provides an excellent summary of the issues that arose when the...

Dubai. Crypto and Arbitration?

Liz Fisher, Professor of Law at Oxford University and one of the great influences in my legal career, taught me to always question a question mark. Mine, in the article title above, could simply refer to the main reasons I’m heading to Dubai next week; in particular, what I might say about the two topics I expect to be talking about most while there. Perhaps, though, the question mark is intended to interrogate what else I’ll be...

What’s up with WhatsApp?

The Morgan Stanley fine shows why good tech lawyers take a broad approach. Morgan Stanley’s fine for failing to record energy traders’ messages not only shows how Ofgem’s reach extends beyond energy companies, but also serves as a useful frame for thinking about the risks of ‘tech blinkers’ when it comes to matters of tech law. Ofgem, the energy regulator for Great Britain, fined investment bank Morgan Stanley & Co International...

Paul Schwartfeger advises Facewatch in successful biometric data processing compliance investigation

Paul Schwartfeger, commercial barrister at The 36 Group, has assisted UK facial recognition technology company ‘Facewatch’ in securing a successful outcome from an investigation by the Information Commissioner’s Office (ICO) into the company. The ICO initiated its review to ensure the lawfulness of the company’s data processing in accordance with the UK General Data Protection Regulation and Data Protection Act 2018. The ICO scrutinised...

Defamed by machine

Brian Hood, Mayor of Hepburn Shire Council in Australia, is said to be considering legal action against OpenAI for false information output by its artificial intelligence chatbot, ChatGPT. When asked about Mr Hood, ChatGPT falsely reported he was imprisoned for bribery when working at a subsidiary of Australia’s national bank. Mr Hood was actually a whistleblower who told officials and journalists about the bribery taking place, and was...

International commercial arbitration and the tech sector

“You and OpenAI agree to resolve any past or present claims relating to these Terms or our Services through final and binding arbitration…” So begins the dispute resolution section of ChatGPT’s terms of use. OpenAI, makers of ChatGPT, are not alone in preferring arbitration for dispute resolution purposes in their terms and conditions. The US commercial terms of Meta, owners of Facebook, also require most disputes...

Copyright: Let’s Chat(GPT)

Copyright of ChatGPT’s output is a complex legal issue, as it can depend on various factors such as the specific text generated, the jurisdiction, and the intended use of the text. That is the answer I received when I asked ChatGPT “Who owns the copyright in ChatGPT’s output?” In fairness, the answer given by the system is not bad in terms of accuracy: copyright is a complex legal issue. However, the answer ChatGPT served to me...

Tulip Trading: how rosy is it really?

In the matter of Tulip Trading Limited v Wladimir Jasper van der Laan and ors [2023] EWCA Civ 83, the Court of Appeal allowed the claimant’s appeal of the earlier High Court judgment, which had denied jurisdiction over Tulip Trading’s claim for breach of fiduciary and tortious duties. Much has been said of how the judgment could ultimately make it easier for victims of crypto fraud and virtual asset hacks to recover their stolen assets, but...

Central Bank Digital Currencies: Still a solution in search of a problem?

Central Bank Digital Currencies (CBDCs) are being touted as a new form of money that could provide a secure and reliable payment system for households and businesses which keeps up with the changing times. Yet the Economic Affairs Committee said of the concept in January 2022 that none of the parties it took evidence from on the potential benefits of a CBDC for the UK were able to give a compelling reason for why one was needed, raising the...

Metaverse

As the metaverse becomes a fully-fledged, integrated and interoperable reality, the need for a comprehensive system of regulation and applicable law will be essential. In this article for Bloomsbury Professional, I discuss the questions lawyers need to be asking and the legal issues the courts are already grappling with. It is a week since I last checked in with my parents in New Zealand. I live in the UK, and the time difference makes keeping...

Cyber law: touching the future

Cyber law will be pivotal in shaping the future regulatory and litigation landscape, but what challenges and opportunities can we expect to see in 2022? In this article for New Law Journal, I share my predictions for the coming year alongside colleagues Dean Armstrong QC, Michael Patchett-Joyce FCIArb, Celso De Azevedo FCIArb, Racheal Muldoon, Shyam Thakerar, Ceri Davis and Fergus McCombie. Read the full New Law Journal...

Podcast: Lloyd v Google LLC

The Supreme Court has dismissed Mr Lloyd’s opt-out representative action against Google for its Safari cookies workaround. Does this mean it’s game over for privacy class actions? The Supreme Court has put an end to Mr Lloyd’s claim under section 13 of the Data Protection Act 1998 for damage allegedly suffered by a class of Apple iPhone users whose personal data had been unlawfully processed by Google in late 2011 and early 2012...

Blockchain: the right to be forgotten (or not)

When it comes to blockchain, the technology-agnostic nature of the GDPR and the right to be ‘forgotten’ enshrined in Article 17 creates something of a paradox. In this article for New Law Journal, I explore with Dean Armstrong QC how a more nuanced analysis of Article 17 yields some possible solutions to the problem of blockchain data being immutable and provide guidance on how data controllers might respond to erasure requests. Now...

Smart contracts: are they as smart as the people who drafted them?

Once only a theory, smart contracts are fast becoming reality. The rapid pace of growth of distributed ledger technologies as well as cryptocurrencies like Ethereum, which facilitate programmable blockchain logic, is helping to bring smart contracts into the mainstream. These contracts are often held out for their ability to overcome issues of trust, performance and accountability, particularly when transacting with unknown parties at a...

Cyber law: framing the future?

From modest beginnings, cyber law is now a recognised disruptor, shaping and challenging the future of litigation. But what is cyber law? As part of a new cyber series for New Law Journal, Dean Armstrong QC and I consider a short history of the laws, crimes and definitions associated with cyber law and share some predictions for the future. Twenty-five years have passed since US Court of Appeals Judge (and lecturer) Frank H Easterbrook suggested...

‘Dark Patterns’ in online design

The Norwegian Consumer Council has filed a legal complaint against Amazon’s Prime subscription service with Norway’s consumer protection authority, claiming Amazon’s complex cancellation design breaches EU law. It is simple enough to sign up to Amazon’s paid subscription service, ‘Prime’: a single click on the checkout path is often all it takes to obtain a free one-month trial with automatic renewal. (Indeed, the UK’s...

‘General and indiscriminate’ data transmission and retention for national security purposes is not justified

National security concerns do not exempt Member States from EU law designed to protect the fundamental rights and freedoms of users of publicly available electronic communications services. In its 06/10/2020 judgment in Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others Case C-623/17, the Court of Justice of the European Union has held that national legislation that enables a state to require the providers...

Twitter investigates its image cropping algorithm for racial bias

Twitter is investigating complaints of racial bias in its image cropping algorithm. The algorithm is used to resize and reframe images, so that they focus on what Twitter’s systems consider to be the most important parts of an image. Users’ experiments, however, reveal that the algorithm frequently prioritises the face of a white person over a black person in its image crops when both faces appear in the same image. Concerns about the risks...

Automating bias?

In R (Bridges) v The Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] All ER (D) 26, the Court of Appeal upheld three of five grounds of appeal against the South Wales Police (SWP) force’s use of automated facial recognition (AFR) technology. Among its conclusions, the court found that the force’s discretion for its use of AFR was too broad to meet the standard required by Article 8(2) of the European Convention on Human...

Podcast: International data transfers post-Schrems

Data in the twenty-first century has been described as ‘the new oil’. It is immensely powerful for those who collect it, but can be immensely damaging to individuals when it is misused. Following my recent article concerning the end of the Privacy Shield and the role this EU-US agreement previously played in protecting the personal data of EU citizens, I recorded a podcast for the Tech Disputes Network which expands on the issue of...

The end of the Privacy Shield

The European Court of Justice (ECJ) has struck down the EU-US Privacy Shield as invalid, having determined that the Privacy Shield cannot provide an adequate level of protection for personal data transferred from the EU to organisations in the US given the requirements of US law. The Privacy Shield was designed to enable the transfer of the personal data of EU citizens to the US in a manner that respected the rights of EU citizens, as enshrined...

Defamation in the cyber age. Where should your digital reputation be tried?

The Court of Appeal’s judgment in Wright v Ver raises some interesting questions. The matter of Wright v Ver [2020] EWCA Civ 672 is interesting for its periphery issue: whether the claimant and appellant, Dr Wright, is Satoshi Nakamoto, the pseudonymous inventor of Bitcoin. However, while the Court was not asked to address this question and does not do so, the dispute is also interesting for the questions it raises about jurisdictional issues...

Compensating for closure

The effects of the Coronavirus lockdown on businesses and the labour market regularly feature in news headlines. How are businesses responding and what claims might follow? In the US, unemployment figures have reached 14.7% as a result of the pandemic. In the UK, unemployment rates are also climbing, although the government’s job-retention and other business support schemes have helped absorb some of the impact. However, on both sides of the...

Sharing scientific research across borders

Extensive research is underway worldwide, in pursuit of treatment options for COVID-19. At the same time, legal questions concerning the use and sharing of health data for research purposes continue to arise. In his essay last week on the value of Internet openness at the time of COVID-19, American Internet pioneer and vice-president of Google, Vint Cerf, observed that: Variations of the European Union’s General Data Protection...

Privacy in the balance in the battle against COVID-19

As the UK begins trialling the NHS’s Coronavirus contact-tracing app, fresh privacy concerns have been raised about the app’s operation. I have previously commented on the technical innovations that states such as South Korea and China have implemented in their fight against COVID-19. In Europe, mobile phone technology is also being deployed to facilitate contact-tracing. That is, to identify potentially risky contact that a...

Zoom: A lesson in why companies need to design with data protection laws in mind

A class action has been filed in the US against Zoom Video Communications, Facebook and LinkedIn for ‘eavesdropping’ by the defendants on the communications that passed between Zoom’s users’ devices and Zoom’s servers. While the plaintiffs’ use of the term ‘eavesdropping’ may appear somewhat loaded given the facts pleaded, the suit nonetheless highlights further the risks that the surge in home-working brought about by COVID-19...

Remote working: A risky business?

COVID-19 has forced a new way of working onto many of us, but in the rush to adapt the additional cybersecurity risks should not be ignored. When the current lockdown began on 23 March, the state instructed people to work from home wherever possible. Many workplaces closed their doors in response, leaving us hastily finding new ways of working, meeting and keeping in touch from our homes. Usage of videoconferencing, online collaboration tools...

Indefinite police retention of DNA, fingerprints and photos held a violation of Article 8

The European Court of Human Rights held in Gaughran v United Kingdom [2020] ECHR 144 that the police’s indefinite retention of the applicant’s DNA profile, fingerprints and photographs without a possibility of review infringed his Article 8 Convention right. The applicant, Mr Gaughran, was arrested in Northern Ireland in 2008 for driving with excess alcohol, following which his fingerprints, a photograph and a non-intimate DNA sample...

Morrisons is not vicariously liable for its employee’s breach of data protection laws

In a unanimous ruling, five Supreme Court justices have ruled in favour of Morrisons in the UK’s first group action for a data breach. In WM Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12 the Court held that the supermarket was not vicariously liable for the actions of its disgruntled employee, Andrew Skelton, who leaked the personal data of more than 100,000 of its staff online. Finding against the...

Barclays calls ‘time’ on its time-tracking of employees

Monitoring of employee activity may be required for reasons of security or to protect an employer’s resources from abuse. However, while an employer may justify a monitoring measure on the basis of such economic imperatives, it could be viewed by its employees, the public or the courts as unjustified snooping. Barclays bank announced last month it was scrapping a system that tracked the time employees spent at their desks, following a...

Tech in times of crisis

As nations around the world battle with the Coronavirus, news reports are emerging of the technological innovations some states are implementing in their fight against COVID-19. However, in the rush to try to bring the virus under control, we are left wondering what the privacy implications and legal consequences of these solutions may be. In South Korea, health authorities have begun sharing details of the movements of COVID-19 patients...