Y2K: Good Samaritan nearly passed by poor old NZ

The Government is finally following Australia and the US with its Y2K information disclosure bill. Business is paying the price, writes BRUCE MCCLINTOCK.

In August last year, the Prime Minister's Y2K Task Force recommended that Parliament enact "Good Samaritan legislation." At that time, the Government decided not to proceed.

Since then, both the US and Australia have moved forward with legislation. Now New Zealand is catching up with its Year 2000 Information Disclosure Bill.

It is unfortunate the Government did not act sooner. Many businesses have already adopted strategies which address difficult communication issues based on the law as it stands today. Those strategies would have been much simpler, less expensive and by now more advanced if Good Samaritan protection had been available earlier.

At present, communications are a key area of legal risk for Y2K programmes.

Statements about Y2K compliance may trigger liability under contract by notifying non-compliance. If inaccurate, or late, they may lead to liability in negligence or under the Fair Trading Act. On the other hand, early and clear disclosure of Y2K non-compliance may assist others in their plans to make a smooth transition to the new millennium and may also fix a point at which those affected must act to avoid suffering further harm.

Faced with these complexities, some choose not to make statements about their Y2K compliance. Others issue statements which are so devoid of information as to be valueless.

The Year 2000 Information Disclosure Act is intended to remove these concerns and so encourage a greater flow of Y2K compliance information.

If passed, the Act will protect those making Year 2000 information disclosure statements from liability. Their statements will also be inadmissible in evidence in any civil proceedings. The Act will not affect contractual or other liability for Y2K non-compliance.

Year 2000 information disclosure statements may be either original or republished statements. To qualify, an original statement must be:

* Made on or after June 1, 1999 and before the close of June 30, 2001; relate solely to "Year 2000 date processing matters", which is defined broadly in the Act to encompass Year 2000 date processing, the detection, prevention, remediation or consequences of problems relating to Year 2000 date processing as well as arrangements for dealing with such matters, such as contingency planning, risk management and remedial action;

* Made in writing (which includes electronic communication of writing, such as an Internet Web site);

* State that it is a Year 2000 information disclosure statement and that the maker of the statement may be protected from civil liability for the statement in certain circumstances; and identify the person making the statement.

To qualify as a republished Year 2000 information disclosure statement, the communication must be:

* A republication of the whole or particular parts of an original Year 2000 information disclosure statement;

* Be made on or after June 1, 1999 and before the close of June 30, 2001; and be made either in writing (in the same manner as an original statement) or orally (including radio or television broadcast).

Assuming no changes to the draft legislation are made, there will be no protection for any Year 2000 information disclosure statement which is:

* Deliberately or recklessly false or misleading; made during negotiations which lead to the making of a contract; made to satisfy a contractual or statutory obligation; made to induce consumers to acquire goods or services; or concerned with the infringement of intellectual property rights.

After it is passed, the Act will assist in protecting statements which fall within its scope. It will also assist in effectively eliminating the risk of liability for passing on Y2K information from third parties.

Those receiving Year 2000 disclosure statements will have to assess whether and to what extent they may be relied upon, given the level of protection which the Act gives.

* Bruce McClintock is a technology partner with Russell McVeagh.