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

AuthorLord Colin Tyre
PositionJudge, Supreme Courts of Scotland
[2018] Irish Judicial Studies Journal Vol 2(1) 100
Lord Colin Tyre
Supreme Courts of Scotland
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superseded by further technological advances.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

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