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Suing in Tort for Loss of Computer Data

Does the loss of computer data constitute damage to property for the purposes of an action in negligence, or is it pure economic loss? On the test in Hunter v. Canary Wharf Ltd. [1997] A.C. 655, if the loss of data is concomitant with a change in the configuration in the particles of the computer hardware by means of which the data are stored, the Courts are likely to find that damage to property has taken place. This is likely to have significant implications in the context of problems caused by the “millennium bug”. However, whatever may be the correct analysis of the nature of the loss, de minimis principles and considerations of fairness, justice and reasonableness may militate against the imposition of liability in tort, at least where the loss of data is negligently, rather than deliberately, caused.