Private law rights in the digital age: the role of the court?

• Author: Lord Colin Tyre
• Position: Judge, Supreme Courts of Scotland
• Pages: 100-111

IRISH JUDICIAL STUDIES JOURNAL

[2018] Irish Judicial Studies Journal Vol 2(1) 100

PRIVATE LAW RIGHTS IN THE DIGITAL AGE: THE ROLE OF

THE COURT?

Lord Colin Tyre

Judge,

Supreme Courts of Scotland

Introduction

During the last 30 years, information and communications technology has

developed at an increasingly rapid and bewildering pace. The internet has

transformed our way of life and there is no sign that we have reached a plateau in

its capabilities. When an organisation such as a court service enters into a

contract for the provision of a new IT system, the only certain thing is that by

the time you get it, you will no longer want what you thought you wanted when

you ordered it.

The law has struggled to keep pace with these developments. Legal rules and

principles devised before the digital age cannot always be applied to electronic

information gathering and communication. Special new rules may quickly be

superseded by further technological advances. As a consequence, the courts find

themselves required to resolve disputes which simply could not have arisen quite

a short time ago.

The focus of this session is on private law rights in the digital age. In this paper I

will consider some of the difficulties that have arisen in relation to the exercise

and protection of private law rights, and examine the ways in which these have

been addressed by the courts. I shall offer some brief observations on the

continuing role of the courts in developing the law in response to technological

change. Because Scotland is a relatively small jurisdiction, many of these issues

have not yet come up for decision there. I shall therefore be drawing to a large

extent upon English case law, as well as that of the European Court of Justice

and the European Court of Human Rights.

What private law rights are affected?

I begin by identifying the rights upon which this paper will focus.

Right to privacy

The first is the right to privacy. This right is enshrined for all members of the

Council of Europe in Article 8 of the European Convention on Human Rights,

which requires respect for private and family life. As has been recognised, the