SMO v TikTok judgment

Some interesting remarks/statements – additional info/comments enclosed in brackets () and italics- are extracted from the Judgment:

‘This is a pre-action application for anonymity on behalf of a child claimant in an intended claim for breach of privacy‘.

‘The papers explained that the urgency stemmed from the fact that the end of the Brexit transition period on 31 December 2020 will bring about changes in the law which are, or are at least said to be, relevant to the intended claim. One change relates to the GDPR. It is said that under the law as it stands before the end of the period this Court has jurisdiction over that aspect of the claim and over the Second Intended Defendant, which is a company registered in England and Wales. The position from 1 January 20201 is “less clear”; jurisdiction will be decided on the basis of the common law rules “which may prejudice the ability of the claimant to bring the claim and/or defend any jurisdictional challenge brought by the Intended Defendants (i.e. defendants outside UK. What about the UK GDPR?)’.

‘Some of the claimant’s paperwork devotes attention to the importance of keeping the claimant’s address a secret. I do not regard that as an issue of particular significance in the context of this case. It is said that its disclosure might give rise to a risk of harm, regardless of the facts of the case, as it would increase the risk of attention from people who intend the claimant serious harm. That appears to me to be unsupported by the evidence. In any event, the claimant’s address is not a weighty aspect of open justice, save in so far as it may lead to the identification of the claimant. The real issue is whether the claimant should be identified. If not, an order for non-disclosure of the address would seem to follow.

‘The common law exceptions did not include the rights or interests of children, other than in the context of wardship. But by virtue of the Human Rights Act 1998 there is now, effectively, a statutory exception. The Court must act compatibly with the Convention Rights, including the right to respect for private life protected by Article 8. And Article 6 provides that the general rule of open justice may be departed from
“where the interests of juveniles or the protection of the private life of the parties so require.” This does not provide any automatic protection for children, regardless of the circumstances: see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 [46] (Lord Kerr), ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 [19] (Ward LJ). A balance must always be struck, and attention must be paid to the specifics of the individual case, not just generalities. But, as Mr Ciumei QC has pointed out in presenting his client’s case, Article 3(1) of the United Nations Convention on the Rights of the Child and other international and domestic instruments require the Court to accord “a primacy of importance” to the best interests of a child: ZH (Tanzania) ibid. (NB: UNCRC Art 3(1) provides the balancing or tipping act when it comes to a child’s privacy rights).

‘It is reasonable to suppose that some of that attention would be focussed on the claimant, if their identity was known. But that is not enough of itself to justify anonymity. Nor is the mere fact that the claimant is 12 years old. It is necessary to consider the nature of the likely attention, and the harm that it could cause. (NB: the likely attention is a trigger for harm).

‘The Commissioner’s witness statement identifies a risk of direct online bullying by other children or users of the TikTok app; and a risk of negative or hostile reactions from social media influencers who might feel their status or earnings were under threat. Both appear to me to be realistic assessments. That is not to say that such behaviour is inevitable, but it is reasonably foreseeable. (NB: risk associated with social media influencers).

‘…the intended claim involves serious criticisms of what may be key aspects of the platform’s (TikTok) mode of operation’

‘I accept the Commissioner’s evidence that children are particularly sensitive to the sort of attention and scrutiny to which she has referred, and that such attention can have a marked and detrimental impact on a child’s mental health, and emotional and educational development. I would characterise the risk of harm as significant‘

‘The assessment of the parents deserves respectful attention.’

‘The main characteristics of importance appear to be age and use of TikTok, and those are shared with all the represented parties. The evidence is that the damages claim will not be peculiar to the circumstances of the claimant, as for instance with a claim to compensate for distress. As in Lloyd v Google, the claim will be for a standard “tariff” figure to compensate the claimant and each of the represented parties for the abstract “loss of control” over personal data. In all likelihood, the main focus of attention for those who wish to understand and scrutinise the workings of the justice system in the intended litigation will be the activities or alleged conduct of TikTok and the role of the defendant companies in its operation’.

‘…if the Court required the claimant to be named that could have a chilling effect on the bringing of claims by children to vindicate their data protection rights. On that footing, the grant of anonymity supports the legitimate and important aim of affording access to justice, and the order is necessary in order to secure the administration of justice.’

Preservation orders and the rules on Electronically Stored Information (ESI) are complex areas for policy makers and also IT folks. Some of these issues I have raised in my article and also briefly during my talk at BCS in November 2011. Both these are available on this page.

Personally I find the term, ESI a confusing term in the context of electronic discovery/disclosure (edisc). In edisc it is not only the digital/electronic information in storage that the rules/laws are addressing. The word ‘stored’ implies storage media/medium/devices and the data in storage is ‘at rest’. Hard to imagine that emails are ESI. In my talk I stated that edisc folks tend to address edisc by talking about discoverable media/medium/devices which is not the case in edisc. So now the proposed FRCP is addressing ‘discoverable information’ instead of just ESI.

Out goes tera/petrabytes instead use ‘Big’

Big also heralds in Hadoop (& Hive & Pig etc)

These ‘animals’ and their Open Source playgrounds will change EDD (Electronic Discovery & Disclosure) software/services.(for the better!)

Will there be a Magic Quadrant EDD tackling Big +Cloud+ Open Source?

There are signs that the EDD rules (i.e. FRCP and CPR) will be revised (for the better?)

Here (England & Wales), the CPR will be revised/changed in April.

My 2013 EDD data recipe ; beware of stale data, don’t ingest ‘all-you-can-eat’ [3 mobile]data, and stay clear of everything-but–the-kitchen-sink EDD approach.

Kick starting the 2013 calendar with blog-chats!

Date :
Thursday, November 15, 2012
9:00 AM – 5:00 PM

In searching in this blog for past events that I’ve attended, most of the links and contents have changed and/or disappeared!

Here’s the agenda:
8.30
REGISTRATION AND COFFEE
9.00
CHAIR’S INTRODUCTION AND CONFERENCE OUTLINE
Chris Dale, The eDisclosure Information Project

A brief overview of the rules and cases used to challenge the conventional view
• Goodale: if the court can make any order, you can seek any order
• The pending Rule 31.5 to encourage active judicial decision-making
• How can you persuade your opponent and the judge to your point of view?

9.20
THE QUESTIONNAIRE/PRACTICE DIRECTION/GOODALE
Moderator: Chris Dale, The eDisclosure Information Project
Panellists: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
Senior Master Steven Whitaker, Senior Master of the Supreme Court of England and Wales in the Queen’s Bench Division, the Queen’s Remembrancer and a former barrister
Kate Paslin, Associate General Counsel – International, AccessData Group

The Questionnaire
• When do you need to complete the Questionnaire?
• What value does it have, even where it does not necessarily apply?
• How do you gather the information early, without incurring significant time and expense?
The Practice Direction
• When does the Practice Direction apply?
• What obligations arise for discussion and cooperation?
Goodale
• This session will assist you in deciding what you really need on your own side and developing the arguments which support any derogations from the stringent obligations under Rule 31.6.

10.30
NETWORKING AND REFRESHMENTS BREAK
11.00
COSTS AND TECHNOLOGY
Moderator: George Socha, President, Socha Consulting LLC
Panellists: Browning Marean, Senior Counsel, DLA Piper US LLP
Dominic Regan, Professor, City University of London
Johannes Scholtes, CSG, ZyLAB
Drew Macaulay, Director, First Advantage Litigation Consulting

Costs
• Costs estimates: how to gather the information and
estimates
• Identifying the certainties and uncertainties
Technology
• What are clustering, email threading, and predictive
coding?
• What do these tools do and what are their strengths
and limitations?

12.15
NETWORKING LUNCH
13.30
HOW SHOULD YOUR LAW FIRM STRUCTURE ITS eDISCLOSURE TEAM?
Moderator: Browning Marean, Senior Counsel, DLA Piper US LLP
Panellists: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
George Socha, President, Socha Consulting LLC
Matthew Davis, Litigation Support Lawyer, Hogan Lovells International LLP
Robert Lewis MBE, Global Director, Barclays CFI/ eDiscovery
David Kemp, Autonomy

Competition: Not just outsourcers, but also clients, consulting firms, and barristers
• Outsourcing:
1. Processing: how do you deal with the processing of ESI? Should you outsource it? If so, when?
2. Document review: what are you outsourcing? What role will your law firm play on an “outsourced” review?
• Staffing: What sort of people would best manage eDisclosure in a law firm or in-house department? How do you find the most appropriate staff, train them, and then learn from them?

14.45
NETWORKING AND REFRESHMENTS BREAK
15.15
OVERCOMING THE CHALLENGES OF PRESERVATION AND COLLECTION
Moderator: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
Panellists: Browning Marean, Senior Counsel, DLA Piper US LLP
George Socha, President, Socha Consulting LLC
Mark Surguy, Legal Director, Dispute Resolution & Litigation Group, Eversheds
Senior Master Steven Whitaker, Senior Master of the Supreme Court of England and Wales in the Queen’s Bench Division, the Queen’s Remembrancer and a former barrister

Preservation
• What are the obligations in a jurisdiction which lacks the US formal concept of legal hold?
• What are the implications of Judge Brown’s statement in Earles v Barclays Bank to the effect that companies who expect litigation must be ready for it and should have the tools and processes to manage it?
• What does the warning in Paragraph 7 of the PD (to advise your clients to stop deletion) really mean?
• How do you keep alert to the Rybak-type situation where your client or his opponent may have deleted data deliberately?
Collection
• Considerations: How? How much? Where from? With what resources? By whom?
• What are the implications of over- or undercollecting?
• Who needs to talk to whom and with what agenda?

16.30
CHAIR’S CLOSING REMARKS AND RECAP

I was recently asked (by a non techie) ‘what is twitter?’ I said ; An online system for you and your friends to announce stuff like; ‘I’m off to bed’ or ‘so and so did this/that’ in 140 characters. She didn’t get too excited with my answer!

Anyhow, I did tweet on the Fulbright’s 7th Annual Litigation Trends Survey Report and also IBM’s acquisition of PSS Systems. Both events worth following up to help me connect up the dots – in simple terms from people to process to technology to the court.

In the Survey Report under Electronic Discovery, there was a survey question which asked all respondents; To what extend do you believe the legal guidance regarding a litigant’s duty to preserve electronic and other material in anticipation of an investigation or litigation provides sufficient clarity regarding the scope of material that must be preserved?. The majority of respondents say it is not sufficiently clear.

I wonder whether this question if surveyed again next year will produce the same result. My guess is that it will, even if the UK respondents have grasped the newly amended CPR -PD31B Disclosure of Electronic Documents.
As regards the scope of preservation, the amended PD31B states; ‘As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business’. Note: not just preserve documents but ‘to preserve disclosable documents’.

The PD31B further provides guidance/direction on ‘what constitute reasonable search’.
Clear enough to connect all the dots as required for ensuring a defensible disposal?

Interestingly there is a question in the Electronic Documents Questionnaire; ‘Do you have a document retention policy? This question seems to be seeking for a simple need to know to a complex policy. Like being asked ‘Do You Twitter?’. Yes/No, so !?

Perhaps a better question is; what kinds of procedures or industry standards/models/practices are in place to address data retention needs? I guess it depends on what the PD31B question is intended to review or capture.
Maybe I will suggest this question (not the PD31B question) for the Fulbright’s 8th Annual Litigation Trends Survey.

Next reminder – to blog about another missing dot which I raised here which appeared to be addressed by folks at CGOC.

A new Practice Direction is introduced to regulate the approach practitioners should take when considering material relevant to a case which is stored electronically. In particular it aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues. This will apply to cases that are or likely to be allocated to the multi-track. The rule change supports the new Practice Direction by confirming that the questionnaire may be treated as a disclosed document. Note: Form N150 is amended to support this change.

A typographical error in PD31B (Question 8 in the questionnaire) has been identified.

Please Note: Question 8 in the questionnaire should read:
8.

If the answer to Question 6 or 7 is yes, state whether (a) attachments to e-mails (b) compressed files (c) embedded files and (d) imaged text will respond to your Keyword Searches or other automated search.

For the contents and details of this Practice Direction click here

For information, the electronic discovery database is maintained by K&L Gates and here’s the blurb:

“Electronic Discovery Case Database  K&L Gates maintains and continually updates a database containing over 900 electronic discovery cases collected from state and federal jurisdictions around the United States.  This database is searchable by keyword, as well as by any combination of 28 different case attributes, e.g., on-site inspection, allegations of spoliation, motion for a preservation order, etc.  Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.”

In the world of IT and wearing my project manager hat on, ediscovery/edisclosure is another ‘activity’ to add to the list of items to consider. In the past (before ediscovery/edisclosure is coined) and in projects I have been involved in, I will do ‘cultural sensitivity’ sensing and ‘who is who’ and ‘who knows what or their role etc’ (the word coined is stakeholder analysis). I have held workshops (e.g. internet banking projects) whereby lawyers were invited as ‘key stakeholders’ and IT people were doing ‘who knows what’. Guess what were the outcomes? Lawyers may know a lot but they generally don’t want to reveal or share ‘openly’ in a workshop. If they do reveal or share, there will be more meetings with several paper memo type exchanges.

What can be done to improve collaboration between lawyers and IT people?  Before attempting collaboration, both teams need to sense ‘who is who’ (not only the IT people) and whether they can deal with whatever the outcomes and learn to accept whatever the consequences.  (fear of being open?) I don’t know any rule books or processes to do this. It’s beyond reckoning… Like some people just can’t ride a bike no matter how many books they have read or seen. This is just my sudden reckoning!

I like the word, protodigital. I would like it better if this word can be a mantra for lawyers and IT folks to get to know ‘who is who’ to reach to ‘who knows what’.

The article titled ‘The Big Data Dump’. Great title for an article that touches on pretty much the reality of life from technology, business and from the kids to the big boys to the Supreme Court.

Well the  ‘dumping’ also extended to changing the law (American Civil Law) or some new rules. Ms Love Kourlis’s quoted in the article : ‘Judges in civil cases, she says, need more power to assess and define the appropriate amount of information that can be sought in each case. Civil cases ought to require both sides to disclose what information they have, as in criminal cases, thus ending the game of hide-and-seek that makes both parties ask for more, for fear of missing something. And shifting lawyers away from being paid by the hour (see article) would mean that they no longer had an incentive to add to the process.’

So what next?

Just the same old content i.e. the US stuff on the FRCP, e-mails, retention policy, technological tools for search and guides etc.

Flip through the nice charts and the articles and go straight to pages 20-21. Spot anything interesting? BTW you can also download a pdf version, how cool… Also the reader is reminded on IBM on every page.

The acronym, CYA caught my attention…

Seems that CYA is recognised as ‘simple human nature’ and when it comes down to saving their e-mails, employee can use ‘CYA’  argument against their employer.

Gosh, I guess one has to find new ways of dealing with e-discovery. So besides the charts and the step by step good practice guides, one can also use ‘CYA’ to save yourself and your e-mails. Would be interesting to see if there will be ‘CYA’ related e-discovery cases.