Founding Jurisdiction and Standing
Module 10: Introduction to Litigating Digital Rights in Africa
Jurisdiction refers to determining the ability or competency of a court or forum to consider and decide a particular matter. Jurisdiction can either be based on geographic areas or on the type of legal issue. It can also be based on where the violation occurred. It is an important and well‑established principle that needs be addressed early on in the development of a litigation strategy as it can have a significant impact on the direction of a case.
One challenge in litigating digital rights issues in Africa is that many cases may involve one of the major multinational technology platforms in some way. While the African Commission on Human and Peoples’ Rights (ACHPR) has not yet fully reflected on the establishment of jurisdiction for big tech companies, there may be some insights to draw from cases brought against multinational oil companies across Africa. The case of Friends of the Earth v Shell(1) provides insight into how to establish jurisdiction when litigating cases involving multinational companies. A judge in the Netherlands agreed to allow a Dutch NGO and four Nigerian farmers to bring a compensation case against Shell for environmental degradation said to be caused by the company’s operations in the Niger Delta.(2)
In South Africa, an ongoing case is seeking to compel Facebook to disclose the identity of a perpetrator who sent anonymous graphic threats to a 13-year old child on Instagram. While the applicant’s lawyers argue that the relief she sought in this case is a generally-established principle of law, they say that since Facebook is incorporated in the United States of America and has made it difficult for users to contact the company directly has left them no choice but to pursue the matter in court.(3)
The doctrine of standing is commonly understood as the ability of a party to bring a matter to a particular court. This involves an evaluation of any existing applicable restrictions on whether an individual or a civil society organisation (CSO) can file a case. It usually boils down to a litigant establishing their interest in a matter: who they are, how they are affected, who they represent, or what interests they represent. To establish standing, a potential litigant needs to demonstrate to the court that there is a sufficient connection between the issue and their interest in the issue. Different courts and tribunals engage with standing differently. Standing is usually the first procedural hurdle that needs to be overcome, so it is important to ensure what the standing requirements are before committing to a litigation strategy.