Y2K: Good Samaritan Act on the cards

By Bruce McClintock

A much-needed boost to Y2K communications is on its way.

Y2K Minister Maurice Williamson has signalled that a Good Samaritan Act is likely to be fast-tracked following a paper by the Ministry of Commerce to Cabinet in the next week or so.

It's a realistic response to what's already happened in Australia which enacted its Year 2000 Information Disclosure Act on February 26.

A Good Samaritan Act aims to lessen concerns that good faith Y2K communications will lead to legal action - a major obstacle to the free flow of information on Y2K compliance.

What will it do? If it follows the Australian Act, which is likely, it will:

* Protect original or republished "Year 2000 disclosure statements" from civil action. These are identified as disclosure statements about Year 2000 problems or their remediation.

* Stop Year 2000 disclosure statements from being admitted in evidence in a civil action, except in some limited situations.

* Protect competitors who co-operate to address the Year 2000 bug from liability under the Commerce Act for anti-competitive behaviour.

* Not affect contractual obligations. If a party has warranted Y2K compliance, that warranty will continue.

* Not protect statements which are deliberately or reckless false and misleading. So long as the statement is made in good faith, it will be protected even if it is false.

* Not protect oral statements. Year 2000 disclosure statements must be in writing.

* Not apply to statements made before the Act comes into force. They will have the same legal status as they had before. However, they can be republished as a
"Year 2000 disclosure statement" which is then protected under the Act.

* Not protect statements made to induce consumers to enter into contracts to acquire goods or services.

* Not protect statements that have to be made anyway under contract or statute.

If and when it is enacted, the Good Samaritan Act will require businesses to take care in framing their disclosures so that they are protected.

But there's a possible downside too. Those receiving statements which are identified as Year 2000 disclosure statements will need to appreciate that they could have been made with less care.

Thus, statements about the Year 2000 bug must be accurate and complete.

* Bruce McClintock is a technology partner with Russell McVeagh who advises on Year 2000 issues.