Each year we gaze into the near future and try to imagine the major trends. Understandably our predictions for 2020 failed to detect the devastating coronavirus or COVID-19. Like everyone else we did not see that coming. Some of our current predictions will be hastened by our experiences in the changed environment. For example, we are in the era of robots and AI, information security is more important than ever, and organisations will curtail their legal spend.
Here are some cautious predictions for a post COVID-19 world. What are the legal trends in a world where a constant consideration is disease? Does the need for physical distancing change our ingrained habits of interacting and working?
Hopefully, you will now be empowered to re-think the future, plan and act.
Automation gathering momentum
Only humans (and possibly animals) suffer from viruses. Automation will quicken and enable more physical distancing. Humans will probably be replaced by robots and software at an increasing rate. Self-empowerment will replace many human interactions. Most of us (including myself) enjoy human interaction but this diminishes when masked and not being able to talk properly, read body language and also the fear of infection.
Electronic signature of documents
Whilst some were using electronic signatures this will now become the norm, except when handwritten signatures are absolutely necessary. Parties signing a document will not be in the same physical place. The less things for anyone to touch – the less chance of spreading a virus. Over centuries safeguards have been developed, including the law regarding signatures. The laws are largely based on the security inherent in physical things like paper and text. Electronic signatures are fundamentally different. We need to understand the differences and change our signature habits to protect ourselves and others.
Open data important
Open data is about sharing information with those who need access to it. Containing viruses means accessing accurate and up to date data. We still need to protect privacy and use as little personal data as possible. So data protection becomes less important than open data. We see more of the Open Data Initiative and open data portals (like the City of Cape Town Open Data Portal and the South African Government’s one). Information security is critical to protect us against fake news and malicious changes to authorised information. This is a related concept to access to information (or freedom of information).
Fake news becomes a matter of life and death, and countries will enact laws (like the Cybercrimes Bill) to stop it.
Privacy and health in balance
We must keep everyone healthy and stop them from dying. We can also protect their privacy at the same time. Data protection in the time of coronavirus is still important. The latest Directive from the Minister of Employment and Labour concerning health and safety in the workplace imposes considerable burdens on employers, even small businesses, from the beginning of May 2020.
Staff being let go
Many employees will become unemployed due to operational requirements and there will be fewer job opportunities. The retrenchment of employees process needs to be done lawfully, carefully and fairly and in compliance with the labour laws. Notice pay, and in many instances, also severance pay must be paid.
We need to understand the rapidly developing law concerning social and financial assistance to those without employment and how to claim benefits. Sadly, we also need to implement measures to protect against corruption and the unlawful theft of the vast sums of money required to protect the less fortunate and stimulate our economy. New laws and regulations need to be developed to make sure that the intended recipients receive their money.
Online stores replacing traditional stores
Online stores eliminate most physical contacts with less chance of infection by the virus because online stores meet the needs of customers from home. Many stores will retain a physical presence, but online stores will be the primary and most important stores. Moving online comes with risks and regulatory obligations and it is important to ensure your legal notices and agreements are up to date.
Mediating disputes online
Some traditional courts are already allowing online ‘appearances’ but this will prove difficult nationally and take time. Online courts will not be the same as our current courts. Through necessity, many will seek to resolve their disputes through online mediation or through some form of alternative online dispute resolution. Richard Susskind‘s book “Online Courts and the Future of Justice” addresses both the challenges and advantages of establishing online courts and is very informative.
Managing contractual defaults
Many will not be able to meet their contractual obligations and look to change, terminate, cancel or suspend their contracts (like leases and supply contracts). Counterparties need to be considerate and creative and find ways to manage their contracts and maintain a successful relationship. It is important to avoid disputes because resolving them will be difficult, time-consuming and costly.
Do not ignore vis major (or force majeure) clauses in negotiations and all your templates will include well-drafted clauses whilst having regard to the overriding common law principle of impossibility or illegality of performance.
Administering companies electronically
Shareholders and directors will meet online and sign resolutions with electronic signatures. This must be done without compromising good governance and in accordance with the founding company documents.
Implementing compliance programmes remotely
Implementing an effective compliance programme is difficult at the best of times. It was easier when everyone was together and will be even more important now with everyone all over the place – some at home and others in the workplace. Employees still need to meet the necessary compliance standards of behaviour and performance as regulated by policies and procedures.
We will have to figure out how this is done online whilst maintaining physical distancing. We will have to meet, workshop and train online. The technologies to do this effectively exist and will improve quickly. We need to develop the skills to use them well.
We also need to advance information security for remote employees beyond the centralised security measures that we currently use.
