Impacts of blockchain on the legal industry

Introduction


We live in the information age where technologies, such as the internet, help

businesses to create innovative digital services and products for consumers’ wants and needs. Recently, one of the technologies being championed as a solution to many of

society's issues is blockchain technology.


Through the utilisation of its features (transparent distributed ledgers, cryptography, and

smart contracts), blockchain has the possibility to digitally create legal contracts and even

transfer ownership of property. As explained by tech guru Chris Skinner "It is a revolution

because blockchains can record identities, financial transactions, and all kinds of legal

operations”. However, there are some legal issues that should be addressed before society confidently embraces its benefits.


1. Legal framework regarding the legal identity of blockchain and shared distributed

Ledgers


Blockchain is a distributed ledger technology. Copies of the ledger (or database) can be

downloaded from anywhere, by anyone, in the world. This opens questions of territoriality

and liability, especially in cases where blockchain networks are not operated by a controlling

entity. Furthermore, the pseudonymity provided to users of blockchain networks through the

use of cryptography, makes it very difficult to identify and hold individuals legally

accountable.


2. Legal framework for confirming that blockchain ledgers are tamper-proof sources of

information that can be used as evidence of possession or existence


Blockchain ledgers secure information using cryptography and smart contracts to ensure

that once information has been verified and saved onto the ledger, it is near impossible to

change it. The validity of this immutability must be acknowledged under the law.

Additionally, there must also be a legal acknowledgement that inclusion in a blockchain of a

deed declaring ownership or the existence of an asset represents genuine proof of

ownership or the real existence of the said asset.


3. Legal enforceability of smart contracts


Smart contracts are self-executing agreements coded into technology that does not need

human intervention. In the Bitcoin blockchain-based protocol, smart contracts are used to

securely allow users to create and send digital assets of Bitcoin from one user to another,

without the need of an intermediary. In general, as these digital assets and agreements are

transacted in a decentralised manner, it must be confirmed whether smart contracts fall

under the traditional legal framework of contract and property law, or if they need an entirely

new framework.


4. Data protection issues on the identification of individuals and the right to be

Forgotten


As blockchain technology allows the users of the network to interact pseudonymously, there

are data protection issues that must be addressed. Regulators and prosecutors such as the Securities and Exchange Commission (SEC) are investigating the potential to possibly identify users using network effects, which would negatively affect individuals’ right to privacy.


Additionally, as information that has been verified and stored on a blockchain ledger cannot

be deleted, it raises concerns with the users’ right to be forgotten, found in the General Data

Protection Regulation. There are already some solutions being developed in

both law and technology including;


(i) saving only anonymous and pseudonymous data on

the blockchain


(ii) and further legal clarification on whether encrypted data saved on

blockchains constitute pseudonymous data (Spanish Data Protection Authority Paper:

Introduction to the hash function as a personal data pseudonymisation technique).


5. Legal framework for the financial instruments stored on blockchains


Blockchain can be used to create immutable information that can potentially have legal

ownership rights, these have been widely coined cryptoassets. They have been categorised

as financial instruments due to their ability to act as a store, transfer of value, and act as a

unit of account (CP19/3: Guidance on Cryptoassets by Financial Conduct Authority).

There has been no consensus on how to categorise these crypto assets which

makes their adoption very difficult, especially with blockchains’ decentralised nature. This

means that different individuals and organisations from different jurisdictions will often be

regulated at varying degrees.


6. Intellectual property


One of the main strengths of blockchain is that it can be very transparent, all participants

can view the source code of the technology and can view the transactions that occur on the

network. However, open-source technology often holds issues relating to intellectual

property. Depending on the usage of the blockchain and the business model built on top of

it, patent rights or copyrights may have to be identified.


Conclusions


Many different industries will be able to benefit from blockchain

technology’s quicker settlement of legal agreements, audible trails, and higher levels of

security and privacy. As we move towards embracing the Internet of Things, having

the digital identities of individuals and machines secured by blockchain technology could

help ensure that we can safely interact with each other.


That being said, there are many legal issues such as the regulation of crypto assets that lack

clarification or international uniformity which makes their adoption very difficult (especially

considering blockchain’s decentralised nature). It is necessary to bring more legal certainty

with blockchain’s growing adoption to protect consumers, ensure that bad actors can be

held accountable and provide the necessary confidence for businesses to grow.