Electronic signatures: in 2009 we will see the first authentication product or service accredited as an “advanced electronic signature” by the Department of Communications (the Accreditation Authority) in terms of chapter 6 of the ECT Act.
Privacy: the Protection of Personal Information Bill that is currently before the South African Law Commission (and has been since 2003) will not be enacted this year.
Consumer protection: the Consumer Protection Bill will be enacted this year. It will, amongst other things, place an ever increasing emphasis on the need to review current website terms and conditions and standard contracts to comply with the plain English provisions of this Bill.
Monitoring of communications: companies will continue to grapple with how to implement RICA (our monitoring law) in a legally compliant manner.
Information Security (1): more encryption technologies will be deployed at the hardware level (e.g. laptops being encrypted) and end point security will become more important with organisations looking to lock down USB ports and ‘regulate’ the use of USBs through information security policies.
Information Security (2): expanding storage capabilities will mean that a “security incident” will result in much more damage than was previously possible. For example, in the recent past, losing a briefcase would only result in the loss of the papers in that brief case whereas today, losing a memory stick, CD, DVD, portable hard drive or smart phone may result in vast amounts of information being lost (including lots of personal information which will be covered by our new privacy law when enacted). This could result in the test for negligence changing shape in that the “foreseeability of loss” of data will become more and more applicable as the value of data increases.
Electronic discovery and IT Forensics: we will begin to see a lot of new entrants in the IT forensics and electronic discovery areas. With this will come the beginning of the “decomposition” of certain types of work carried out by lawyers in that the discovery of electronic data will be outsourced to outside companies and no longer handled by law firms as has traditionally been the case. We also expect to see more of what some people refer to as “counter forensic” techniques on potential evidence arising, as ordinary people become more and more technically literate – in that a lot of people are now aware (assisted with the popularity of the popular TV series “CSI” – computer scene investigation) of what is needed to remove valuable evidence, and ensure that it is never collected on computers in the first place.
Information management: it has been suggested that 2009 will be a year of increased tension between the opening up and the closing down of information. In one sense information wants to be free (because it is easily available, often free, easy to copy and forward) a fact which is reinforced by the “Internet generation” that is at home with YouTube, Wikipedia, Facebook and other social networking websites. In another sense, information wants to be controlled: with oceans of information out there, people are looking for accurate, highly relevant information (“knowledge”) which they are prepared to pay for – hopefully many organisations will also appreciate that bad information and records management results in larger volumes of irrelevant paper-based and electronic documents being reviewed by their attorneys in litigation, which in turn leads to unnecessarily high legal fees.
Outsourcing: For many, “more for less” might very well be the mantra for 2009. Outsourcing will therefore continue to be an appealing business model and will keep attorneys busy as clients seek to rein in costs.
Software as a Service (SaaS) (also known as cloud computing): the same mantra will apply here and SaaS will increasingly become a part of our personal and business lives (several SaaS offerings already form a part of Michalsons IT infrastructure). It is interesting to note that many commentators believe that cloud computing is “stupid” in that it ultimately results in consumers being “locked in” to particular vendors.
Legal fees: the economic downturn will increase the already gathering momentum and client pressure to move from time-based fees to fixed fees and other non time-based fee arrangements.
Online legal services: the proliferation of (non-law firm) websites offering legal contracts for sale via download will continue and some law firms will start using technology to offer legal services.