Tech law update 23 August 2010

Preference vs protectionism

Labour MP Clare Curran has entered the Kiwi Jobs Bill into the private members’ ballot. The bill aims to “determine whether the NZ Government can have a policy that gives preference to local procurement without breaching our international trade obligations”. The bill would apply to IT procurement, which has prompted some differences of opinion from the industry. For something as universal as IT, anything that is simply protectionist would be irrational and detrimental. But an increase in transparency and the promotion of open standards (if the Bill does that) would be welcomed.

IT & the new Limitations Act

Under the Limitation Act 1950, the general rule is that a person cannot bring a claim in contract or tort more than 6 years after the cause of action arose. As a result, business records (including electronic data) should generally be kept for at least 6 years (although other acts impose specific rules, for example 7 years for certain accounting information under the Tax Administration Act). However, over the years many quirks and wrinkles have been introduced into the picture, resulting in some uncertainty.

A replacement Limitation Bill received its first reading earlier this month. The bill tidies up and simplifies limitation periods. Importantly, it proposes to introduce (for most matters) a “longstop” limitation period of 15 years. As a result, prudent businesses will want to keep some records for 15 years. This sounds like a very long time and, of course, raises some practical issues, but expanding storage capabilities mean disk/cloud space should not be burdensome for most businesses. However, there can be a downside to keeping records – in that they may be discoverable in litigation – so this rather dry subject does require some thought in each case.

Record keeping risk?

On a related note, a new survey shows that most Kiwi businesses do not have documented procedures for recovering from an IT disaster. Besides the business interruption risk, there could be significant third-party legal risks from a catastrophic data loss. For example, a firm that has assumed responsibility for holding records for clients (e.g. accountants, architects, engineers, lawyers, etc) could be liable in negligence for their clients’ business interruption following the record-holder’s data loss, in certain circumstances.

ISP search concerns

Is the Copyright (Infringing File Sharing) Bill a wolf in sheep’s clothing when it comes to secret surveillance? Civil liberties lawyer Michael Bott thinks so, and wants better notification requirements for electronic searches.