TechLaw Chat

This podcast, which continues the story started in Episode 3, considers the liability implications arising out the exfiltration of a client's confidential technical data following a cyber attack.

For further reading, we recommend:

• Decode.legal's excellent primer on Cybersecurity for Lawyers.
• Schneier's "click here to kill everybody", a thought provoking  discussion of present and future cyber attacks and their consequences.

This podcast explores some immediate actions that might be needed where an apparent ransomware attack threatens the leak of highly confidential technical data. For this podcast, Matthew and Iain are joined by Michael Brown of Northwall Cyber.

For further reading, we recommend:

• Decode.legal's excellent primer on Cybersecurity for Lawyers.
• Schneier's "click here to kill everybody", a thought provoking  discussion of present and future cyber attacks and their consequences.

This podcast explores the legal remedies that are available when Bitcoin are misappropriated, and some of the practical challenges of enforcement. For a more detailed analysis of the treatment of cryptoassets as property, see the Legal Statement on cryptoassets and smart contracts, November 2019, published by the LawTech Delivery Panel UK Jurisdiction Taskforce (downloadable here).

The legal basis for recovery of fraudulently misappropriated Bitcoin and factors that are engaged on an interim application are addressed in AA v Persons Unkown, Re Bitcoin [2019] EWHC 3556 (Comm).

In relation to crypto-assets as property in other common law jurisdictions, see: 

• Ruscoe v Cryptopia Ltd (In Liquidation) [2020] NZHC 728 (New Zealand).
• B2C2 Ltd v Quoine Pte Lrd  [2019] SGHC(I) 03  (Singapore).

For a detailed explanation as to the technical workings of Bitcoin, see  Bitcoin: A Peer-to-Peer Electronic Cash System, Nakomoto, 2008 (available here).

Note: in an earlier version of this podcast, the exchange was unable to transfer Alice's bitcoin back to her because it did not have access to the fraudster's private keys. In practice, however, the majority of mainstream exchanges do control account holders' private keys (allowing them to treat "deposited" bitcoin as fungible). Therefore we have altered the scenario to reflect the more common case (albeit at the expense of illustrating a conundrum we think rather interesting!).

This podcast is intended as an introduction to issues that arise when an AI bot creates defamatory content. For detailed commentary on this specialist area of law, see: Gatley on Libel and Slander (12th Ed, 2017) and Duncan and Neill on Defamation (4th Ed, 2015 – with new addition forthcoming). For an overview, see our chapter on ‘Liability for Economic Harm’ in The Law of Artificial Intelligence (2020, forthcoming).

Cases relevant to auto-generated content include: 

• Bunt v Tilly [2006] EWHC 407 (QB)
• Metropolitan International Schools Ltd (trading as Skillstrain and/or Train2Game) v Designtechnica Corpn (trading as Digital Trends) and others [2009] EWHC 1765 (QB)
• Tamiz v Google Inc. [2013] EWCA Civ 68 CA

For other jurisdictions, see e.g. Defteros v Google LLC [2020] VSC 219 at [40], in which Richards J summarised the Australian position as follows: “The Google search engine … is not a passive tool. It is designed by humans who work for Google to operate in the way that it does, and in such a way that identified objectionable content can be removed, by human intervention, from the search results that Google displays to a user.”  For Hong Kong, see e.g. Yeung v Google Inc. [2014] HKCFI 1404; Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKFCA 47 (especially [76] for a test endorsed by the authors of Gatley).

On the contradictory positions taken by search engines worldwide, see, e.g., Sookman, “Is Google a publisher according to Google? The Google v Equustek and Duffy cases”, C.T.L.R. 2018, 24(1).