Information Law, more fashionably known as ‘Cyberlaw’, concerns the body of law that regulates anything to do with information and information systems.
A sensible starting point in understanding the reach of information law is to understand the impact of relevant electronic transaction laws (which give legal recognition to electronic forms of writing, signature, retention and production of information) on other laws.
One result of the interpretive nature of electronic law is that where there is a legal requirement to retain information in writing, sign or produce information (evidence), the electronic form of traditional writing, signature, retention and production of information satisfies the legal requirement (exclusions exist), meaning, that even older laws which pre-date electronic law, fall within the realm of information law.
In Australia, aside from electronic transactions laws, there are laws that are:
- Information-specific (eg Privacy Act 1988)
- Not information-specific, but that have information-specific provisions (eg Corporations Act 2001)
The perception that information law is limited to a few traditional legal practice areas (intellectual property, media, entertainment, etc.) is not correct. In practical terms, information law affects every legal practice area and every individual and business that uses Information and Communication Technology (ICT). It affects social media, cloud technology, big data, Enterprise Resource Planning (ERP), Enterprise Content Management (ECM), Client Relationship Management (CRM) software and hardware implementations as well as tax, employment, mining, crime, health, M&As and much more. It is also, wholly dependent upon information security. Specifically, the CIA Triad of Confidentiality, Integrity and Availability.
Information law relates to almost every aspect of life today.
The regulatory landscape in Australia is more complex than in unitary states (eg the UK) as a result of Federalism. Broadly speaking, there are two orders of governmental authority – Federal and State – each having legislative, executive and judicial powers conferred upon them by the Commonwealth of Australia Constitution Act. Local government is sometimes described as the third tier of government as it has authority to regulate on certain matters.
The result is a ‘patchwork’ of laws, regulations, and other legislative instruments that apply in various jurisdictions over different and sometimes similar matters. It allows for the situation where (for example) the Privacy Act 1988 can apply to Australian, ACT, and Norfolk Island public sector agencies, but not apply to the public sector agencies of States (VIC, NSW, QLD, TAS) that have their own privacy legislation. The Privacy Act 1988 nevertheless, applies to all large businesses (revenue over $3m pa), health service providers and other organisations in all Australian States.
Surveillance (monitoring and interception) is another example of this patchwork complexity. Certain States (NSW and the ACT) authorise surveillance in the workplace, while others (VIC) prohibit surveillance in certain circumstances. Sector specific considerations are important too, as different laws apply to sectors such as law enforcement, telecommunications, health, marketing, consumers etc.
Any business wanting to maximize sustainable competitive advantage arising from the use of technology whilst managing legal and other risks needs to have a clear understanding of how the regulatory landscape impacts them, what laws apply to them and how these relate to their use of technology and their business processes.
The law – technology nexus: Technology issues are critical to legal outcomes. Business, IT and legal counsel will need to understand the requirements relating to information being readily accessible for subsequent reference, the need for consent, the appropriateness of technical methods used, how to secure the maintenance and integrity of the information, the requirement for meta data and the effect of the deeming provisions on the place (origin, destination) and the time (sent and received) of communications.
Legal and other risk cannot be separated from the use of ICT. Specialist information law, security, governance, architecture and related skills are necessary to achieve compliance and manage risk.
Author: Helaine Leggat
Bachelor of Law | MAICD | CISSP | CISM | CIPP/US | CIPP/IT
Helaine Leggat is one of a few people in the world to hold a bachelor of law degree together with information security, governance and privacy qualifications from global leaders in these fields. She understands the relationships between people, information technology, global business and international imperatives.
The preeminent information technology and telecommunications advisory service, Information Legal is respected for its innovative and quality advice.
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