Oliver Bray, a partner in the Intellectual Property and Technology Group at Reynolds Porter Chamberlain LLP and Chairman of the City of London Law Society Commercial Law Committee, asks: “Is web archiving a new legal necessity?”
In issue 03 of Legal IT Today, 03 October 2013, he defines the problem, assesses the legal risks and challenges, and concludes "If your activities are governed by regulators like the FCA, then your excuses for non-compliance with web-based record retention requirements are fast running out. And if your organisation has a web presence that does (or may) attract the eye of a regulator or a potential claimant, then the arguments (be they cost, reputational or otherwise) equally all point towards the adoption of efficient web-archiving systems and policies.”
How did he get there?
Bray outlines the limitations inherent in the traditional IT approach to content management, predominant in enterprises today: these are unable to deliver an authentic, defensible, native-format archive of web content and social media.
As a result, enterprises face legal liability and regulatory compliance risks relating to their web content and communications. Bray gives a number of examples, in the UK:
Defending a complaint made to the OFT, the ASA or Trading Standards in connection with your historic on-line marketing material.
Businesses that are governed by financial regulators, such as the UK’s Financial Conduct Authority (FCA), should pay attention to “provisions relating to retention of records that encompass the need to preserve non-traditional documentary records, such as web content.”
UK insurers, should note the Conduct of Business Sourcebook (COBS) and the Insurance Conduct of Business Sourcebook (ICOBS), which contain additional relevant provisions.
Bray moves on to general eDiscovery risks: “increasing demands of litigation and e-discovery, coupled with the cost savings of a fully searchable web information system, and an efficient web archiving policy begins to look less like an attractive nice-to- have, and more like an indispensable business necessity.”
The challenge is that most enterprise web-based content (by this I mean websites, intranets, extranets, SharePoints, blogs, wiki’s, Twitter, Facebook, LinkedIn, YouTube, Pinterest, etc.) is maintained on a broad range of technologies and systems, which presents serious technical, logistical and financial challenges for the preservation of web-based content. “There is a serious and growing gap in many corporations’ document lifecycle management policies. They need a web archiving policy.”
The solution is “Web archiving is the only means of creating and maintaining a stable, time structured, verifiably authentic and independent version of the corporate web presence”. It is also the only way the corporate web-publishing infrastructure can evolve without threatening accessibility to legacy content.
The solution is a modern web archive:
Advanced modern crawlers to capture the most technically demanding modern web and social media content
Flexible and enduring native format preservation in ISO 28500 WARC files
APIs and connectors into enterprise archives and legal processing systems
Proven archival process that is authentic, discoverable, and legally defensible
This is Hanzo by design.
Oliver Bray, again:
“If your activities are governed by regulators like the FCA, then your excuses for non-compliance with web-based record retention requirements are fast running out. And if your organisation has a web presence that does (or may) attract the eye of a regulator or a potential claimant, then the arguments (be they cost, reputational or otherwise) equally all point towards the adoption of efficient web-archiving systems and policies.
To learn more about a modern web archive, used extensively in financial services and other regulated industries, download our white paper.