cyber Litigation: The Legal Principles by Dean Armstrong QC, Fergus McCombie, Ceri Davis

-About this book

Cyber Litigation: The Legal Principles brings together the existing legal principles in this rapidly developing area of law whilst at the same time considering the latest challenges facing practitioners and corporate advisers.
The authors have surveyed the legal landscape to identify bespoke approaches to the issues involved.
The book looks at the most common causes of action in cyber litigation, including ‘cybercrime’, IP, data protection breaches, and conflict of laws considerations. It analyses the situations where cyber-related litigation requires a new approach and looks at the remedies available. It covers cyber litigation and regulatory enforcement action, as well as alternatives to litigation such as the NCA Prevent scheme, Deferred Prosecution Agreements and Civil Recovery. It describes situations where arbitration or mediation are mandated, as well as online dispute resolution and technology powered alternatives to traditional determination.
Readers will benefit from the use of flowcharts, tables, checklists and case studies to provide a clear understanding of the processes involved, as well as legal analysis of significant cases, an insight into what constitutes ‘data’, and legal analysis and commentary on potential legal arguments that may arise in cyber litigation.
Cyber Litigation: The Legal Principles is an essential title for all practitioners involved in commercial disputes, information technology professionals, data protection officers, compliance staff and technologists with a legal interest.

-Contents

Preface v

Table of statutes xiii

Table of statutory instruments xix

Table of cases xxi

PART I INTRODUCTION

Chapter 1: What is Cyber Litigation? 3

What is cyber litigation? 3

What are the technologies that affect litigation? 4

What areas of society are affected by cyber litigation? 5

What are the current areas of cyber litigation? 6

Cyber litigation in practice 7

PART II CAUSES OF ACTION

Chapter 2: Cyber Litigation and Criminal Law 11

Introduction 11

Cyber-enabled or cyber-assisted? 12

What cyber-assisted crimes is technology giving rise to? 13

Domestic violence and domestic abuse 13

Harassment and public order 21

Voyeurism 31

Indecent photographs and prohibited images of children,

and extreme pornographic images 34

Financial crime: fraud, bribery and corruption, money laundering,

terrorist financing and financial sanctions 45

Illicit items 59

Theft 59

Blackmail 63

Trade sanctions and export controls 66

Murder and grievous bodily harm 72

What are the cyber-dependent crimes? 77

Ransomware, malware, spyware etc 77

Distributed denial-of-service 82

Cybercrime-as-a-service 84

What is technology doing to criminal investigations and the

criminal justice system? 84

Investigations 85

Evidence 95

Decision making 100

Chapter 3: Cyber Litigation and Civil Law 109

Cybersecurity 109

Contract and tort 109

Other sources of cybersecurity law 111

The regulation of online content 115

Age Appropriate Design Code 115

Online Harms White Paper 117

Select Committee Report on Immersive and Addictive Technologies 118

Particular types of online harm 119

Excessive screen time 119

Problem gaming 120

Online age ratings 121

‘Loot boxes’ and in-game purchases 121

E-sports 125

Development of automated vehicles 125

The policy context 125

Testing of automated vehicles 127

The legal issues 128

Artificial intelligence and databases 130

Financial technology 133

Algorithmic trading 134

Crowdfunding 135

Cryptoassets and smart contracts 136

Definitions and characteristics 136

Cryptoasset regulation 137

Smart contracts 140

Chapter 4: Causes of Action in Data Protection Law 143

Introductory 143

General Data Protection Regulation 143

Supervisory authorities 144

Scope and boundaries of data protection law 145

Territorial scope 145

The application of the GDPR 146

The role of the DPA 2018 148

Terminology and definitions 148

Personal data 148

Processing 151

Controller 152

Processor 152

Consent 152

Special categories of personal data 153

Profiling 153

Filing system 154

Pseudonymisation 155

Data protection principles 155

(a) ‘Personal data shall be processed fairly and lawfully and in a

transparent manner’ 156

(b) ‘Personal data shall be collected for specified, explicit and

legitimate purposes and not further processed in a manner

that is incompatible with those purposes …’ 163

(c) ‘Personal data shall be adequate, relevant and limited to what

is necessary in relation to the purposes for which it is

processed’ 164

(d) ‘Personal data shall be accurate and, where necessary kept up

to date. Every reasonable step must be taken to ensure that

personal data that is inaccurate, having regard to the purposes

for which it is processed, is erased or rectified without delay’ 164

(e) ‘Personal data shall be kept in a form which permits

identification of the data subjects for no longer than is

necessary for the purposes for which it is processed …’ 165

(f) ‘Personal data shall be processed in a manner that ensures

appropriate security of the personal data …’ 165

Accountability 166

Controller to processor contracts 166

Notification and registration requirements 168

Other accountability measures 168

Data subject rights 170

Rights of transparency and information 170

Subject access requests 171

The right of rectification 171

The right of erasure and the right to be forgotten 173

Right to restriction of processing 175

Data portability 176

Right to object, and automated decision-making 177

Data security and personal data breaches 178

PART III LITIGATION AND EVIDENCE

Chapter 5: Jurisdiction 183

Introduction 183

What are the general rules on jurisdiction in cyber litigation? 183

How can the general rules on jurisdiction be amended? 191

What are the particular areas of cyber litigation that have specific jurisdictional considerations? 197

New Court List and Pre-Action Protocol for Data Claims 203 Privacy Shield 204

How will the rules on jurisdiction be impacted by Brexit? 206

Chapter 6: Class Actions 209

Introduction 209

Group Actions in England and Wales 210

Consolidation of claims and multiparty litigation 210

Representative parties 210

Group Litigation Orders 212

Group Actions in cyber cases 214

GLOs 214

Representative actions 217

The future of group actions in cyber litigation 224

A new attitude from the courts? 224

Loss of control extended? 225

A growth in Group Actions? 227

Chapter 7: Vicarious Liability 229

Introduction 229

Vicarious liability 229

The Mohamud case 232

The Morrisons case 235

Vicarious liability and cyber litigation 246

What can companies and corporates do to protect themselves? 248

Chapter 8: Evidential Considerations 253

Introduction 253

What are the specific challenges in evidence gathering in cyber litigation? 254

Lawfully obtaining electronic material 254

Privacy 276

Evidence abroad 280

What are the specific evidential challenges once material has been obtained? 284

Maintaining the integrity of material 284

Accessibility of material 285

Admissibility of material 287

Retention of material 292

PART IV REMEDIES AND ALTERNATIVES TO LITIGATION

Chapter 9: Remedies 297

Introduction 297

What criminal remedies are likely to be seen in criminal ‘cyber’ cases? 297

Restraint and confiscation orders 298

What civil remedies are being seen in civil ‘cyber’ cases? 305 Injunctions 305

Legal considerations 320

Practical considerations 322

Contract law remedies 329

What remedies are provided by ‘regulators’ in ‘cyber’ cases? 331

Notice and take down requests 331

Information Commissioner’s Office 332

Should the courts and regulators develop new remedies for cyber litigation? 344

Chapter 10: Alternatives to Litigation 347

Introduction 347

What are the alternatives to criminal prosecutions in ‘cyber’ cases? 347

National Cyber Crime Unit’s Prevent programme 347

Serious Crime Prevention Orders 349

Deferred Prosecution Agreements 355

Civil recovery 360

Criminal taxation 367

What are the alternatives to civil actions in ‘cyber’ cases? 368

‘Cyber’ disputes being resolved by alternative dispute resolution 371

Information security in alternative dispute resolution procedures:

the 2020 Cybersecurity Protocol for International Arbitration 377

How are ordinary disputes being resolved by ‘cyber’ and technology? 379

Online dispute resolution 379

Alternatives to traditional dispute resolution 382

Index

-Caractéristiques

Date de parution :15 décembre 2020

Éditeur ‏ : ‎ Bloomsbury Professional

Langue ‏ : ‎ Anglais

NB.de pages ‏ : ‎ 440 pages

ISBN-10 ‏ : ‎ 1526513595

ISBN-13 ‏ : ‎ 978-1526513595

Poids de l’article ‏ : ‎ 708 g

Dimensions ‏ : ‎ 16.41 x 2.41 x 24.79 cm