REFLECTIONS-4 OCTOBER-8 OCTOBER 21

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THIS IS REFLECTIONS, our weekly roundup of events in the legal and technology sector, covering various topics and interesting learning points for today’s professionals.

If you couldn’t make an event, don’t worry, we probably made it and have all the juicy scoop for your reading pleasure and learning.

Do you have an upcoming event you would like us to know about or attend? OR do you know of one you would like to read about? Send an email to us HERE.

SOFTWARE DEFECTS AND THE LAW: DEALING WITH THE DESPAIR, DISTRUST AND DISPUTES OF A DISPRO(DISASTER PROJECTS)

The Speaker, Dr Stephen Castell during the event discussed the scope of Learning Software and Systems Procurement, development and implementation disaster signals as well as the Common technical issues that produces IT disputes and litigation and how to avoid it when the situation arises. One learning point Dr Stephen Castell stated was understanding IT Contract monitoring, turnarounds and dispute resolution techniques and processes.

He mentioned some problems regularly encountered in Software Supply which are:

1. Selling Software

2. Contracting for Supply of Software

3. Designing Software

4. Building Software

5. Installing and Implementing Software

He further raised the question: Why worry about IT Disputes? He answered by stating that because Litigation over a software supply can become a very practical and costly worry: the unfamiliar ‘forensic methodology’ of the legal system suddenly imposed itself on Litigants and in particular on unsuspecting software and systems professionals.

Some features common to many of such cases are:

i. ‘Hidden Agenda’ caused the contract to be terminated, and the original contract had limitations on possible remedial actions available

ii. Whatever the mode of dispute resolution, costs can run to huge amount of money to reach a closure.

He also stated the Forensic view of IT Project/ Contract Disputes and such disputes can prove costly and time consuming to unravel.

For the purpose of rejection of the software and termination of the contract, any alleged defect must be assessed using a strict test as to whether it was a material defect.

Using the Software Material Defect test accepted by the Court, an alleged Software fault must be:

1. Must be of Large consequential effect

2. Impossible or takes a long time to fix

3. Incapable of any practical workaround

Parties need to understand impact on project scope, timetable and costs of doing all requested software changes.

Where in dispute or litigation, the Expert is asked: Were there changes from the originally contracted software? If so, what was quality of the additional software built and to what financial remuneration is the supplier entitled for providing such software extras.

Standard quantitative analysis techniques give an objective graphical presentation of the true ‘bug find and fix’ performance of the software house, understandable to non-technical clients, lawyers and Judges.

In his concluding remarks, the Speaker, Dr Stephen Castell gave few tips from the Litigation ‘Trenches’. Thus, the first tip being;

1. Don’t Let the Dispute escalate into a legal action in the first place

Warning your insurer early may well be able to help extricate o self from impending disputes

2. Consider the use of an Independent Expert in negotiation and/or in a Dispute Board Adjudication

3. If dispute is headed towards legal action, consider all ADR options: Mediation, Arbitration and Expert Determination.

TOPIC: SOFTWARE DEFECTS AND THE LAW: DEALING WITH THE DESPAIR, DISTRUST AND DISPUTES OF A DISPRO(DISASTER PROJECTS)

DATE: 6TH OCTOBER 2021                  DURATION: 1HR 45 MINS 6.30PM-8.15PM

SUMMARY:

This gives insights into the objective state of Software and contributing to saving time and costs in facilitating rapid settlement of technically complex disputes that may arise. It also gives insights into the benefit of Expert experience in identifying and avoiding IT Disaster Projects and avoidance of failure of key IT systems procurement, development, implementation and delivery. Thus, better legal contracting, professional quality assurance, improved corporate investment in IT Projects and Contracts.

TOPIC: HACKERS VS THE COURTS: DOES THE LAW PROTECT DATA?

The speaker was Allen Mendelsh on, the speaker noted that a data breach is not something rare and that data breaches at times are as a result of accidental release and sometimes as a result of intentional hacking.

He noted that the Office of the privacy Commissioner in a program requires companies to report when they have databases.

The speaker noted that in the modern times and in modern law data, personal information and privacy, are all sort of blended together and when we think of legal protection of data privacy. He noted that for the most part, the legal protection is protection of personal information.
He defined personal information, as defined in the beta is information about an identifiable individual, it means it’s specific information that’s related to a person, their name, their phone number and email. He said that data on the other hand, the broadest term is, well it’s anything. It’s any piece of information, and the engineers will recognize the audience will recognize well Data is just a bunch of ones. He mentioned that data, all personal information is data, but not all data is personal information.

On privacy laws and their application in Canada the laws include Personal information protection and electronic documents act (PIPEDA) and General Data Protection Regulation (GDPR).

He noted that there are Canadian laws that protect personal information that’s in the hands of the government’s at Canada there’s a federal privacy Act that is actually the privacy Act that protects personal information held by the Government, and Quebec also has its own governing laws.

He noted that the obligations under PIPEDA includes adhering to principles such as:
*Accountability. He noted that an organization is responsible for personal information under its control….

*Safeguards. He noted that personal information shall be protected by security safeguards appropriate to the sensitivity of the information.

Under PIPEDA companies that are in control of people’s information, are required by law to be accountable for it, and to use proper technological means to safeguard and protect people’s personal info.
The speaker noted however that with all the regulations under PIPEDA, there is actually no penalty for defaulting companies, he also noted that the OFFICE OF THE PRIVACY COMMISSIONER POWERS OF ENFORECEMENT UNDER PIPEDA and that it is his responsibility to ensure that Canadian organizations and international organizations prepare it up, however the commissioner actually has no powers to enforce compliance with PIPEDA.

For penalties for non-compliance under the GDPR, he noted that Article 83 subsection 5 stated that Infringements… be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher…
And subsection 6 mentions that Non-compliance with an order by the supervisory authority be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year. whichever is higher.

He noted that breaches of security may include consequences such as Real Risk of Significant Harm which includes bodily norm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities. financial loss, identity theft, negative effects on the credit record and damage to or loss of properly

He mentioned the sensitivity of the personal information involved in the breach and the probability that the personal information has been, is being, or will be misused.

On using the courts to protect data, he noted that complainant may after receiving the Commissioner’s report or being notified that the investigation of the complainant has been discontinued, apply to the Court in respect of any matter in respect of which the complaint was made.

He noted that Court may, in addition to any other remedies it may order an organization to correct its practices in order to comply, it may order an organization to publish a notice of any action taken or proposed.

He noted that the court may award damages to the complainant, including damages for any humiliation that the complainant has suffered.

DATE: 6TH OCTOBER, 2021

TIME: 4:30PM

THEME: LAW ENFORCEMENT AND CRIMINAL JUSTICE EQUITY

MODERATOR: BRIAN DUFFY

ANCHOR:  CAROLYN MURRAY

HOST: KRISTY DARFAR

SPEAKERS: LAURIE GARDUQUE

                      GARY RANEY

                      SOLICITOR SCARLETT WILSON

INTRODUCTON:

The section started at exactly 4:30pm with Brian Duffy who was the moderator welcoming and introducing the organizers of the event.

Thereafter, Carolyn Murray who was the anchor introduced the speakers.

The first speaker the person of Gray Raney commenced his session by explaining and giving an overview on what the topic of the day entails.

The speaker defined criminal justice as the delivery of justice to those who have committed crimes.

He said that the goals include the rehabilitation of offenders, preventing other crimes, and moral support for victims. The primary institutions of the criminal justice system are the police, prosecution and defense lawyers, the courts and prisons.

The speaker pointed out that the first contact a defendant has with the criminal justice system is usually with the police (or law enforcement) who investigates the suspected wrongdoing and makes an arrest, but if the suspect is dangerous to the whole nation, a national level law enforcement agency is called in. When warranted, law enforcement agencies or police officers are empowered to use force and other forms of legal coercion and means to effect public and social order. He said that the term is most commonly associated with police departments of a state that are authorized to exercise the police power of that state within a defined legal or territorial area of responsibility.

Police are primarily concerned with keeping the peace and enforcing criminal law based on their particular mission and jurisdiction.

The second speaker Laurie Garduque based her discussion on Courts and prosecutor and defence attorney.

She said the courts serve as the venue where disputes are then settled and justice is administered. With regard to criminal justice, there are a number of critical people in any court setting. These critical people are referred to as the courtroom work group and include both professional and nonprofessional individuals. These include the judge, prosecutor, and the defense attorney. The judge, or magistrate, is a person, elected or appointed, who is knowledgeable in the law, and whose function is to objectively administer the legal proceedings and offer a final decision to dispose of a case.

She further said that, the U.S. and in a growing number of nations, guilt or innocence (although in the U.S. juries can never find a defendant “innocent” but rather “not guilty”) is decided through the adversarial system. That in this system, two parties’ will both offer their version of events and argue their case before the court (sometimes before a judge or panel of judges, sometimes before a jury). The case should be decided in favor of the party who offers the most sound and compelling arguments based on the law as applied to the facts of the case.

The speaker said that the prosecutor, or district attorney, is a lawyer who brings charges against a person, persons or corporate entity. It is the prosecutor’s duty to explain to the court what crime was committed and to detail what evidence has been found which incriminates the accused. The prosecutor should not be confused with a plaintiff or plaintiff’s counsel. Although both serve the function of bringing a complaint before the court, the prosecutor is a servant of the state who makes accusations on behalf of the state in criminal proceedings, while the plaintiff is the complaining party in civil proceedings.

The speaker further said that in the U.S., an accused person is entitled to a government-paid defense attorney if he or she is in jeopardy of losing his or her life and/or liberty. Those who cannot afford a private attorney may be provided one by the state. She said that the right to a defense attorney has not always been universal.

The third speaker Solicitor Scarlett Wilson did a recap of what the other speakers have discussed and answered the questions in the chat box.

The meeting ended at 6:00pm.

EVENT DIARYEVENTROUNDUPLEGALTECHreflections

lawpavilion • October 20, 2021


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