Determining a strategy

A holistic litigation strategy is as much about the anticipated outcome as it is about the steps needed to reach that outcome. Developing a strategy can take some time, particularly when there is a long-term vision. However, time is not always available, and strategies sometimes have to be developed very quickly. Whether it is urgent or protracted there are three key tenets for every litigation strategy, and in this regard the tripod analogy is useful. In order for a tripod to be balanced and useable, each leg needs to be of equal length and strength. The same rationale is applicable to a litigation strategy, with the three being:

1. Procedural considerations.
2. Administrative capabilities.
3. Substantive goals.

These considerations are interdependent and need to be given equal consideration. If one is not properly considered, or if one fails, there is the possibility that the entire strategy will fail.

Procedural requirements

The procedural considerations are those that relate to actual court process and requirements. The considerations listed above will form an important part of developing a strategy. By way of a brief recap, it is important to consider the following:

• Standing.
• Jurisdiction.
• Admissibility.
• Representation.
• Amicus curiae involvement.

Other procedural considerations include which parties to cite, court-mandated time frames, procedures regarding interim remedial measures, conflicts of interest, and rules regarding the gathering of information. Another important consideration is that of mandate. It is imperative that lawyers have received the requisite mandate to act, particularly when acting for broader community groups. It is advisable to set out the terms of reference and mandate agreement up front to avoid any procedural mishaps along the way.

Administrative capacity

Administrative considerations include:

• The financial implications of the litigation from beginning to end including any unexpected costs and possibilities of appeals or cost orders.
• Capacity to deal with the matter.
• Expertise and skills.
• The setting up of a team and the distribution of roles.
• Internal and external time frames.

Drawing up budgets, developing calendars, and ensuring there are sufficient financial and human resources form an important part of the development of a sustainable strategy.

Substantive requirements

This leg is all about the legal substance.  Here, the facts, law and remedy all need to be considered in detail. This includes understanding and mapping out the following:

• Nature of the legal challenge.
• Rights are implicated.
• Extent to which the facts support the legal challenge.
• Proposed remedy.
• Alternative remedies.
• Rights implicated.
• Applicable legal frameworks.
• Domestic, regional or international law and jurisprudence.
• Overcoming a limitations / restrictions analysis.
• Issue of costs.
• Reputational development or backlash.
• Safety and security of litigators and clients.
• Forms of research and advocacy that will be of use to the case.
• Parallel and complimentary strategies.
• Social, economic, political and cultural considerations.
• Systemic issues.
• Reliability and legitimacy of the judicial body

Linking research, advocacy and litigation is key in the development of a substantive strategy.

Gathering evidence

The ordinary rules of evidence apply to digital evidence, which must still meet the minimum standards of relevance and reliability in order to be admitted. Different types of evidence can be useful for proving a case and providing clarification regarding the facts of the case. This can include evidence of the violation, expert evidence, digital evidence, and witness evidence. The rapidly evolving digital landscape is providing both opportunities and challenges in relation to the gathering of evidence. On the one hand, there is a large quantity of available digital information, whereas on the other hand, collecting and analysing the evidence can be challenging and technical.(1)

Unlike traditional evidence, digital evidence can be more complex given the volume of available data, its velocity, its volatility and its fragility.(2) Courts should consider legal and technical requirements when considering the admissibility of evidence.(3) Legally, courts should consider:

• The legal authorisation to conduct searches and seizures of information and communication technology and related data.
• The relevance, authenticity, integrity, and reliability of digital evidence.

Technically, the courts should consider:

• The digital forensics procedures and tools used to extract, preserve, and analyse digital evidence.
• The digital laboratories whereby analyses are performed and the reports of digital forensic analysts.
• The technical and academic qualifications of digital forensics analysts and expert witnesses.

Fortunately, there is a wealth of resources that can assist lawyers and activists when trying to capture, collect and present evidence of digital rights violations.

Creating partnerships with experts and technical organisations can be of great use. Harmonising technology with the law and presenting viable evidence to courts can go a long way in advancing digital rights and freedom of expression.

Not all digital evidence needs to be over technical and complicated. Videos or online sources can play a role in proving rights violations, but verification remains key. Widespread dissemination of information can be useful, however, with disinformation on the rise, it is important to verify information – such as videos – before relying on it or using it as evidence. Amnesty International has set up a Digital Verification Corps hub, which uses tools to verify information found in videos posted on YouTube and circulated via WhatsApp.(4) Timing is verified through a comparison between time periods in the videos and reports of the United Nations Human Rights Council, and confirmation of the events is verified by comparing footage to Google Earth and Google Maps. This level of verification can be useful and ensure that accurate information can be put before courts and tribunals.

Digital rights and freedom of expression violations often are accompanied by technical terms that many people, including judges, do not fully understand. It is therefore important to be able to simplify the technicalities in a way that captures the rights violation. For example, the legal team may consider engaging with technical partner organisations or amici curiae with technical expertise to assist the litigators and the court in better understanding the concepts that are before it.

Litigators should also make use of the plethora of toolkits available that can assist in understanding technical terms. See for example:

• Media Defence Report Mapping digital rights and online freedom of expression in East, West, and Southern Africa
• Media Defence Manual on freedom of expression law
• Media Defence Training Manual on Digital Rights and Freedom of Expression Online
• Media Defence Digital Rights Litigation Guide

Start a #

Something as simple as creating a hashtag can go a long way. #FeesMustFall, #MeToo and #BlackLivesMatter turned from hashtags into mass movements and challenged systemic issues.

Learn and teach

Engaging with community-based activists, experts and academics can ensure that everyone is informed of their rights, the issues, and their available remedies. During the early 2000s, the Treatment Action Campaign in South Africa developed a strategy to educate people in South Africa about HIV/AIDS. The education focused on the technical medical component of the disease, as well as a rights-based component that enabled people to be rights-literate. Community healthcare workers, activists, lawyers, and other medical experts worked together to ensure that everyone understood the issues and was empowered to address them.

More recently, Ndifuna Ukwazi, an organisation based in South Africa, has begun developing different techniques to assist community members with addressing access to housing and unlawful evictions. They host regular workshops where people with legal skills explain the law to the community, in an effort to ensure that those persons could then train other members of their community. This has developed into a sustainable model where community members educate each other. The communities began learning how to represent themselves in unlawful eviction matters and became available to assist others who might not have easy access to legal services. This campaign has been effective in ensuring that people have agency and are empowered to solve legal challenges.

Sharing information online, hosting workshops and developing infographics can all assist in ensuring that there is an informed society, an informed judiciary, and an informed government.

Tell stories not statements

Issues around digital rights and freedom of expression affect people differently, and their different experiences can play an important role in the way others understand the issues and how others relate to the issues. People, including judges, are often more likely to show empathy for an issue that has a human side. Sharing stories about how people have been affected, and letting people tell their own stories, can go a long way in strengthening an advocacy campaign and in turn can support the litigation.

Meaningful actions

Actions have proven to be an effective means of drawing attention to an issue. Actions can range from protests and disruptions to petitions and submissions to those in power. They can include visual statements such as paintings, posters, or billboards. These should be strategic and impactful and should send the right message.

More Resources on Litigating Freedom of Expression Cases