The Malta Independent 27 January 2022, Thursday

And (digital) justice for all

Mark Said Monday, 29 November 2021, 06:18 Last update: about 3 months ago

While conceding that we will never have enough courts or judges, improving access to justice has been an ongoing but frustrating goal of our society.

We have new technological tools to resolve disputes and new tools to prevent disputes. Alternative dispute resolution, namely mediation and arbitration, brought dispute resolution out of court. But that is not enough. Eventually, we will also need new dispute resolution processes and, equally important, new ways to avoid disputes, something that has been neglected by those seeking to improve access to justice in the past.

In March, we had a digital study visit to Estonia by the Maltese justice sector as inspiration for Malta’s first digital justice strategy. It is interesting to note that Estonia has declared free internet access a human right,  has a thriving IT start-up culture and has digitally streamlined an unprecedented number of public services for citizens and businesses. The Estonian state, where practically the digital divide is non-existent, currently offers 600 e-services to its citizens and 2,400 to businesses.

Equal access to justice has long been an axiom of the law. Equal access to information has been the gift of the technological revolution. But just as the industrial revolution resulted in the disenfranchisement of the craft class, so too does the technological revolution risk the fractionation of the analogue class from the legal system. While the protean concept of “law and technology” offers both opportunity and uncertainty, equal access to justice is a promise of holistic legal assistance decoupled from the prospect of a digital divide. Can our technically advanced legal system  avoid entrenching marginalization and meet this central concern of the rule of law?

With court infrastructure now largely migrated online, our justice system is poised for front-of-house transformation, such as the nascent development of online courts and online dispute resolution.

Superficially, the injection of technology into Malta’s legal system has had a positive impact on access to justice. For example, electronic filing simplifies forms and procedures and online courts offer a simple and accessible interface between the court and litigants. The benefits of these developments are palpable; digital justice has the ability to reach over to a substantial part of our population who are digitally included. The counterpoint is that technological reforms risk leaving the digitally excluded, who are not few, behind.

The asymmetrical adoption of technology was never a sufficient justification for circumscribing its use in the legal landscape. This new era in the administration of justice demanded adaptation, rather than rejection.

While the marriage of technology and access to justice has positive features, it is important not to neglect the adverse side effect of technology, the digital divide. How widely digital exclusion is defined has an impact on the understanding of the digital divide and its severity. The common assumption is of a person without access to the Internet or a device. However, the definition is multidimensional. Digital exclusion extends to persons without the ability, confidence or willingness to engage with technology.

The exact magnitude of digital exclusion against the backdrop of justice is difficult to ascertain. However, noting the digital divide emerging from intermittent national digital exclusion surveys, it is clear the impact on access to justice is not negligible. Furthermore, the digitally excluded are often the most vulnerable classes. Persons are more likely to be digitally excluded or illiterate if unemployed, uneducated, disabled, elderly, homeless, indigenous or rurally located. And unfortunately, those who are digitally excluded and unable to access justice have a greater likelihood of experiencing legal problems.

Those responsible for implementing digital justice reforms have acknowledged that the reforms must cater to all persons, but existing platforms provide only partial accessibility for the digitally excluded. The introduction of online courts was accompanied by the first wave of solutions to the digital divide. Perhaps more could be done to the staple solution of Assisted Digital Support (ADS), which offers multi-channel technical support that is tailored to different user needs, including face-to-face support, telephone help and web-chat assistance. Initially, such an initiative would have robust backbones but would require further development.

It is imperative that the digital transformation of the legal system be periodically measured. A significant proportion of the older generations may never achieve basic digital literacy, impeding them from using online services effectively or at all. Therefore, at least for the existing generations, the continuation of paper-based processes and face-to-face hearings are required. Some reforms seek to digitise and remove traditional systems as a cost-cutting measure, however, for the next few decades, these savings should not be the focus. As the digital divide organically shrinks, as new generations grow up in a digital world, resources supporting traditional courts can be reduced and savings from technology may be realised. Until then, offline and online court processes should coexist to better provide for equal access to justice.

We need to make informed choices about the design of digital justice. This requires careful balancing of the benefits of the technological revolution against the risks of the digital divide. The digital transformation of justice systems is inevitable and will not be stunted by the digital divide. The impact of the digital divide can be minimised if the transition is gradual.

The existing reforms are producing admirable first-generation digital justice but continuous refinement is required. Together, these insights can bolster access to justice for the digitally included and excluded.

Our justice system is rising to the fundamental new challenges posed by the digital era and is striving to meet the legitimate expectations of citizens, companies and organisations. Only when the provision of a modern, efficient, non-intimidating and barrier-free access to justice is in place can we take it to be a sign that the rule of law is in good shape while also strengthening trust in the justice system.

 

Dr Mark Said is an advocate

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