The other day, I had cause to reflect on the way we flick in and out of different sets of rules in our daily life. Of course, our relationships are bound by legal rules which allocate rights, risks and obligations.
I was thinking about this the other day when we were trying to figure out how to cast spells in the Wii version of a Harry Potter game. You twiddle your remote around and if you’re lucky, the item you’re pointing it at flies into the air. We had just packed up for the evening when Harriet the cat came flying through the cat door with a dear little rat in her mouth. Strangely, the rat did not fly into the air when I cast the correct spell – it didn’t follow Harry Potter rules. It did, however, sit still long enough for me to stun it with my husband’s aptly named book Useful Clarinet Solos. One down. And in spite of my instructions to the contrary, Harriet brought in Nearly Headless Nick and his slightly more advanced brother the next morning. Harriet plays to different rules too. Three down – so far.
In the commercial legal-world, where we get into real trouble is when there is a set of rules which overlays the standard commercial rules. For instance, I frequently have clients bringing me supply contracts with overseas suppliers. Sometimes the contract will specify the law under which they are to be interpreted. If we’re lucky, it’s New Zealand law. If we’re not, it can be the law of some other country, and I have to advise my clients that they need to seek local advice there as well. Sometimes there is international law that overlays the contract, such as international arbitration law or international sale of goods law, both of which are incorporated into New Zealand law by treaty that has been ratified by Parliament. Even something as simple as a mediation clause may have private legal rules attached to it: for example, the rules of a specified mediation service.
We get into difficulties when our rules change too. Many years ago, when the Fair Trading Act came into effect, and before I was a lawyer, I spent a lot of time training my staff on the Fair Trading Act. It was for their good as well as the company’s, because the act creates personal liability for those who breach it. I still do that sort of training. In the IT industry, it looks as if there is a new and harsh set of rules on the horizon: the waste minimisation rules. The bill which will turn those into statute is currently before Parliament. It contains rules for corporate and personal (read employee) liability.
My impression is that many people in the IT industry have sat back and let other people consider the effect of that bill. Be warned. You will have to be very clear about your own responsibilities and your businesses’ responsibilities. It’s time to start taking notice, and to get involved in the discussions, training, and industry groups which are addressing this issue. If you don’t, you are likely to be personally at risk.
This is your wake-up call. It beats the heck out of being woken up by a cat with a rat in her mouth. Though even that is a lot better than facing a $100,000 fine.
Rae Nield is a solicitor specialising in marketing law. This article is intended for general information and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at firstname.lastname@example.org.