Nobody denies that 2018 had been, from a legal point of view, a real revolution in matters such as personal privacy. After a year discussing the new European Data Protection Regulation, on May 25 the regulation became fully applicable, and with it came an important change in how companies and administrations treated and exploited personal data. The regulation was completed by Organic Law 3/2018 of December 5 Regarding the Protection of Personal Data and Guarantees of Digital Rights. Almost in injury time, the new law that would regulate those aspects that European regulation left to the authority of member states was approved and entered into force, dealing with new issues such as guaranteeing digital rights.
Without a doubt, this will be one of the great challenges that during 2019, jurists, companies and administrations will have to face, along with others listed below:
After May 25, Life Continues
We already anticipated at the beginning of this article that perhaps the great challenge was not reaching May 25, but rather implementing a sustainable compliance system. Beyond maintaining records of processes and risk analysis, firms must ensure that these records remain updated. This entails greater introspective knowledge by companies regarding not only of what we carry out today but also of what we will do in the future . The data we collect today will be the basis of the digital economy, the success of the business model and the opening up towards new ideas and markets. The risks will also evolve, something that we already see every day in the field of information security, but we must also consider legal and organisational issues. It is undoubtedly in this aspect where we must advance in the idea of legal innovation, seeking solutions before problems occur, changing the way in which lawyers are understood and requiring value-added innovation, giving merit to compliance and therefore fostering business growth.
Reconciling different regulations according to activity and different business models, at a time when this is a certainty, is as society demands global services in the era of the digital economy. Borders have given way to cross-regulatory understanding and subsequently to the necessary reconcilation to fulfil different legal obligations, catering to services themselves with respect to where they are provided.
Another key aspect will be the development of the role of Data Protection Officer, taking into account the number of obliged subjects, their role and involvement in companies and administration all from a focus on value creation, based on respect towards privacy and individual rights.
Perhaps through that lens, May 25 was not an Armageddon, but the beginning of a new era, one we all expected and needed, a new standard for a new economy. It is in this new era, where systems of control, contingency planning, proactivity and responsibility become necessary, maintaining and improving what has already been implemented in a process of growth and continuous reinvention.
New Rights, New Challenges
The Organic Law 3/2018 introduced, in its final draft, a new category of rights, namely digital rights as well as the need to establish sufficient guarantees for their protection. Society itself has evolved from talking about different realities to a single 360º reality, which includes both the physical and digital realms, prompting the legislator to include mechanisms for the protection of both.
These guarantees, their implementation and reconcilement, constitute another of the great challenges that we will face in the coming months. Concepts such as digital disconnection in the workplace, the right to privacy against the use of video surveillance devices and sound recording in the workplace, the right to privacy in the use of geolocation systems in the workplace and digital rights in collective bargaining, highlight the necessary renewal of organisational systems in firms, making it necessary to open discussion regarding digital labor laws. The elaboration of labor compliance plans, the weight given to and respect for workers' rights, the necessary considerations and a new concept of the employer-employee relationship necessitate a revision of the rules of the game from a future perspective. Not only are the requirements of today taken into account but also those of tomorrow and the subsequent reconcilement with new ways of understanding the employment relationship.
From Miners, Nodes and Oracles to New Business Systems
In recent times we have not stopped reading about the Blockchain and how this new technology was going to revolutionize the way we work and interact with companies or administrations, providing greater security in these transactions. This discourse is already a reality and is already having an impact on issues such as: (a) transactions and payment systems, (b) supply chains, (c) records of documents, (d) Smart Contracts and decentralized applications (known as Dapps) ) and of course, (e) cryptocurrencies.
At the end of the year we learned that Angulas de Aguinaga joined the IBM Food Trust platform, based on Blockchain technology, to control its distribution process from production to arrival at the point of sale. Like Carrefour, the company implemented this very platform on its country-grown chicken, raised without antibiotic treatments, enabling customers to find out by scanning a QR code a specimen's tracking history and the methodology followed in its preparation and distribution. Both cases are just two examples of how these technologies will impact sectors such as food and consumer goods, insurance, banking or healthcare, among others.
The same cryptocurrencies have undergone a change in these months, going from being used by a small sector, to being a major point of discussion in our discourse in terms of how it will be regulated fiscally and its impact on tax paid by citizens. Along with these aspects, others to be considered are the markets for the purchase and sale of digital currencies, their impact on money laundering prevention regulations and financing of terrorism, as well as the understanding of virtual money as a means of payment.
The Era of Robots and Connected Technologies
When we used to talk about subjects of this nature a few years ago, what came to mind were series like Knight Rider or sci-fi film sagas such as Star Wars. But today, these concepts are already a reality. The Internet of Things, the impact of connected devices and the interaction between them have led to heavy investments in recent months, based on the conviction that these things have become reality, and that in the coming months there should be a legal debate on aspects such as responsibility, the treatment of information, and the impact on different sectors (among others distribution, transport or the way we relate to companies), making tangible the expression "the future is today" .
These are concepts that will also impact other sectors such as the fashion industry, where we will have to move forward on topics such as the use of RFID tags, beacons and geofending techniques, 3D technology applied to the fashion sector (smart mirrors and virtual influencers , among others) and intelligent weaves, wearables and eyeables, and its special importance in areas such as health (prevention of skin cancer).
Other Legal Challenges on the Horizon
Other technological concerns that pose challenges in the coming months are, among others, the implementation of artificial intelligence in certain respects such as the use of chatbots by companies, specifically in sectors such as healthcare or legal which bring the user's experience to another realm. The analysis of massive data or big data technologies, marking a before and after in the development of new business models, services or knowledge of end users themselves, is making familiar concepts such as cookies a thing of the past, highlighting the need to adapt processes and relationships as with publishers in the case of advertising and media management.
The new business models and the necessary reconciliation with more traditional ones, concepts already incorporated in the common language such as "uberization", pose challenges in different areas of law and the in the need to adapt services to new requirements, needs and demands of society.
Finally, the legal sector should continue advancing on topics such as digital entrepreneurship, taking into account the Preliminary Draft Law for the Promotion of the Startup Ecosystem, currently in the public consultation phase; the impact of new technologies in the financial sector; the advancement of virtual reality and 3D printing with its respective legal implications; the legal challenges in relation to the concepts of multichannel, omnichannel and global communication management; or eSports and its impact on aspects such as sponsorships, sports management, implications in terms of intellectual, labor, fiscal and administrative property and its interrelation with other business models such as gaming and gambling.
Tomorrow is Today
Undoubtedly, 2019 is fraught with challenges from a legal point of view, where the legal sector itself must continue advancing in its knowledge of technologies, business models and regulatory changes that are approaching. We must evolve towards an understanding of law not only as an area of concrete practice, but also comprehend it from a global and multidisciplinary perspective. We must recognize also the need to advance our knowledge and understanding of specific areas of law in line with the demands of the market, and to push forward, along with technological or business innovation, legal innovation itself.
By Daniel López
Partner from Ecija