Lex Ferenda

Via this month’s issue of MacFormat comes an intriguing bit of software, Undercover.  It’s designed to catch your friendly neighbourhood thief.  It does some obvious things, like track and try to communicate information (IP address, router address, etc).  However, it also does some more unusual tricks, like take screenshots of what the tea-leaf is doing, and even on enabled machines (like the new MacBook Pro), takes photographs with the built-in iSight digital camera and sends them on too!  Finally, if none of that works, it develops a fake hardware fault in the hope that it will provoke the new ‘owner’ to bring it to an Apple shop, where it then magicall repairs and gives a notice of the true owner to the (presumably baffled) technician.  In fact, it will even start TALKING at that stage.  Which is just freaky.

The makers are pretty confident - they offer money back if they don’t get your Mac back.  It seems that the system works by you notifiying them when the machine has been stolen, at which point the monitoring kicks in (incidentally, unless the machine goes online, it won’t work at all).  One thing that could concern users, though, is that your machine does communicate constantly with the company, although they assert that they do nothing until you’ve notified a theft.

It’s basically voluntary benevolent spyware.  But perhaps a worthwhile tradeoff - a positive use of what is normally negative technology? Would you use this software?

A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured? (Childs v Desormeaux)

And so Beverly McLachlin, chief justice of Canada, launches into what is a very contested point of law, but an instantly accessible and recognisable one too. Where does the law draw the line of liability? Or in the great tradition of pithy legal phrases, ‘who is my neighbour?’ This is of general interest, I suspect, so this post, on the above decision (published this week) is a departure from cyberlaw.

The court - the Supreme Court of Canada - found that in general, private hosts didn’t have a duty of care towards those injured by party-goers (this particular driver was an over-goer, having got through 12 beers in 120 minutes leaving him at almost 3 times the legal limit…). Pubs can have a duty (although, of course, this alone doesn’t guarantee a successful claim!).

Applying the two-part Anns test (a-proximity/foreseeability and b-policy reasons not to apply duty, a long-standing English precedent), it failed on the former. It gets blurred, though, when they discuss the factual evidence (the trial court hadn’t agreed that the host, who even walked the driver to his car, was aware that he was impaired). It’s also relevant that holding a house party (as opposed to, say, extreme sports) is considered non-dangerous and some version of ‘normal’. (Obviously McLachlin CJ never attended a demolition party in her student days!) . Another consideration was that it was a bring-yer-own-booze event, not an event where the hosts supplied all the alcohol. In fact, they only supplied a few sips of champagne. Must have been rockin’, then.

So the answer is a qualified no. The door on liability for X towards Z for the consequences for serving alcohol to Y isn’t entirely shut, but it’s definitely closed over.

As for Ireland and the UK - I don’t know of a definitive decision on this point. Certainly, Irish law was (for some time) quite close to Anns, and if anything, the Glencar case from a few years ago makes it even more difficult to establish liability. But if I’m wrong, the comments button will correct me.

Further reading:

• The full case
• A review of US ’social host alcohol liability’
• Yes, you can actually get insurance for the actions of your tanked-up guests. Guess their market isn’t helped by this case.
• Social host liability broadly rejected in Australia: Parissis v Bourke - slightly obiter, but does discuss the Canadian case (not the Supreme Court version, of course).