“Night Manager” style contracts – in the blink of an eye!

Written by David Marchese

Amid the dazzling thrills of BBC TV’s acclaimed recent series based on John Le Carré’s novel, “The Night Manager”, viewers may have been bemused by the sequences (including the gripping finale) where a vast (and of course illegal) arms deal was completed (apparently) through the use of iris recognition technology on a portable device. Is this a sign of things to come?

We have long been used to the notion of electronic “signatures”, which can include retinal scans and iris recognition as well as other biometric means of authentication. Effectively, any agreed and established form of electronic authorisation may be used to form an ordinary contract, or authorise payment.

The legal basis for this under UK law is to be found in the Electronic Communications Act 2000, which first made electronic signatures admissible in legal proceedings, and subsequent regulations implementing the 1999 EU Directive on electronic signatures.

Of course, issues of authenticity, security and integrity of the digital information need to be satisfied in order to make such a system possible, and it would have to be used in the context of international privacy law (as to which, we are still waiting approval for the new US-EU Privacy Shield – essentially, requiring confirmation that the US agencies obey the rule of law). And the technology has to be effective. In fact, iris recognition technology has been around since the 1990s, but its use has increased recently as the technology has improved, particularly in relation to physical access (as users of UK ePassports will have noticed if they use the fast gates at UK airports). In principle we should be seeing its use for other kinds of authorisation any time soon.

So, contracts concluded through such means are not so fanciful. The issue as ever will be, when do we want to use such systems, and what are the practical risks that they pose? Setting up an effective system will require all the skills of an international lawyer – but perhaps not quite those of Richard Roper’s lawyer.

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David Marchese

I graduated from Oxford University before qualifying as a solicitor at Herbert Smith. I went on to work at Richards Butler and then Davenport Lyons, before joining Gordon Dadds in 2014. I have extensive experience advising on the law of intellectual property, information technology and commercial contracts. I am the author of Business Licensing Agreements (Longman, 1995), the section on Supply of Goods and Services in Practical Commercial Precedents (Sweet & Maxwell) and several published articles including Joint Ownership of Intellectual Property (EIPR, 1999) and Warranties and Covenants in IP Licences (OUP, 2009).

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