General Principles and Introduction to Digital Rights Litigation
Module 10: Introduction to Litigating Digital Rights in Africa
What are digital rights?
It is now firmly entrenched by both the ACHPR(1) and the United Nations(2) (UN) that the same rights that people have offline must also be protected online, in particular the right to freedom of expression. As stipulated in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. Digital rights are basically human rights in the digital era, comprising the rights that are implicated in our access to and use of technologies as well as how fundamental rights play out in the online environment.
The internet does give rise to particular challenges that need to be noted when considering litigation on digital rights issues. The ability to publish immediately on the internet and reach an expansive audience can create difficulties. For example, the borderless nature of the internet can make establishing the true identity of an online speaker more challenging, founding jurisdiction for a claim more complex, or achieving accountability for wrongdoing that has been perpetrated online more difficult. Moreover, it can be challenging to fully remove content once it has been published online, or to contain its impact and spread.
Nevertheless, while the new digital world has certainly created some new issues, there are many that can be readily dealt with by applying a reasonable approach to the established principles of law.
General principles in litigating digital rights
In addition to jurisdiction and standing, there are a number of procedural requirements that form an essential part of any litigation strategy.
Admissibility refers to the process applied by international human rights fora to ensure that only cases that need international adjudication are brought before them. The principle of admissibility in regional fora usually requires that all domestic remedies are exhausted and that consideration be given to whether there are rules relating to prescription and whether the forum recognises the concept of ongoing harm. In effect, admissibility dictates that an attempt to resolve a matter domestically should have taken place before approaching a regional or international forum.
Different courts and fora might have different rules relating to legal representation. Sometimes legal representation is not required, but might be useful; other times, the court or forum might facilitate the provision of free legal aid. Representation does not always have to be legal, and litigants can sometimes be represented by a person of their choice.
An amicus curiae is a ‘friend of the court’. It is not a main party to the litigation but is accepted by the court or forum to join the proceedings to advise and assist it in respect of a question of law or other issues that affect the case in question. Interested parties usually need to apply to the court or forum requesting permission to intervene in the matter and typically need to prove that they have an interest in the matter, their submissions will be of use to the court or forum, and that they will not be repeating the arguments of the main litigants. Courts and fora usually have the discretion to grant or refuse an amicus application. It is worth noting that amicus interventions can be particularly useful when litigating digital rights matters as there is often a need for technical and expert analysis given the constant progression within the digital environment.