The Practicalities of Litigating Digital Rights

Module 10: Introduction to Litigating Digital Rights in Africa

Determining a strategy. There are three key tenets for every litigation strategy: procedural considerations, administrative capabilities, and substantive goals. These considerations are largely interdependent and need to be given equal consideration.
Gathering evidence. Different types of evidence can be useful for proving a case and provide clarification regarding the facts: this can include evidence of a violation, expert evidence, digital evidence and witness evidence and testimony. 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) 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.
Advocacy strategies. Litigation alone is not enough to effect substantive change or effectively disrupt the status quo — advocacy is an essential component.(2)

Human Rights Center UC Berkley School of Law ‘Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court’ (2014) (accessible at https://www.law.berkeley.edu/files/HRC/Digital_fingerprints_interior_cover2.pdf).
See APC, ‘Advocacy Strategies and Approaches’ (accessible at: https://www.apc.org/en/advocacy-strategies-and-approaches-overview); Call Hub, ‘Advocacy Strategies’ (accessible at: https://callhub.io/advocacy-strategies/), and Call Hub, ‘Grassroots Advocacy’ (accessible at: https://callhub.io/grassroots-advocacy-definition-strategies-and-tools/.