The viability of online Courts (Part One)

Abstract
Covid19 and its resultant lockdown regulations, imposed worldwide, have demanded that new and innovative ways were embraced and adopted to ensure continuity of everyday life while isolating from the world we once knew. March 2020 saw the abrupt and unprecedented closing of Courts worldwide, despite pending cases, hearings in process and rights to be enforced, ultimately curbing access to justice and leaving all of us with one primary question: is it better to go online?

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With the shock and disbelief of the monumental impact that Covid19 has had globally, one is left wondering what the world of legal practice will be once we return to some form of “new normal” (if it could be called that).

The rapid adoption and implementation of “online” court systems and processes during the pandemic has raised the question as to whether it would be viable to permanently shift to online courts as countries, industries and practice areas slowly start returning to work under a new world order of surgical masks, hand sanitizer and social distancing.

The current court system is criticized as being too lengthy, too costly and unintelligible, leaving the vast majority of laypersons, other than lawyers and legal practitioners, guessing as to their legal rights and remedies, ultimately obstructing access to justice. The World Justice Project’s Report on Global Insights on Access to Justice - 2019 found that an estimated two-thirds of the world’s population (that is, more than 5.1 billion people) are not able to access justice to address their everyday problems, with about 1.4 billion people harbouring an unmet civil or administrative justice need. The majority of the world population is thus unable to access courts and/or enforce their rights, with only 46% being able to live under the protection of the law while the remnants are left to defend for themselves. These data were gathered by Richard Susskind, one of the leading legal futurists, in the ‘’Future of Courts’’.

Richard Susskind argues that the problems and inefficiencies of the current justice system and its access can be resolved by “online” Courts. It is important to note here that “online Courts”, although the most commonly used terminology to described court proceedings taking place online, may not necessarily be the most optimal given the confusion that may arise when different, yet similar terminology is used to describe online court proceedings, such as “remote”, “virtual”, “digital” and the like. Susskind distinguishes between three types of so-called remote hearings: firstly, there is what Susskind refers to as “audio hearings”, which entail court proceedings being conduct via audio-only, such as through telephone or audio systems (e.g. voice recordings). Secondly, he refers to “video hearings”, which entail court proceedings being conducted via a video conferencing system. Finally, he refers to so-called “paper hearings”, where decisions and the ultimate judgment is based solely on written submissions that have been made to court, no evidence is presented other than what is provided in the court papers and no oral testimony is delivered.

Susskind emphasises that in the current fourth industrial revolution of digital societies and economies, the provision, buying and selling of online services is common practice. So why should the provision, buying and selling of online legal services and access to justice be regarded as a novel service offering? Online, remote hearings hold the potential to offer affordable, fast, comprehensible and proportionate legal services and access to justice.

Given the high number of Internet users worldwide (representing 59% of the global population) and the ease with which the internet can be accessed, online courts provide an easily accessible virtual forum for the fair and just resolution of disputes without the common barriers to justice. These include (but are not limited to) the distance and costs associated with travelling to court; accommodation costs while the case is pending, especially where one is situated in a remote or rural area; the time and costs involved in litigation including attorney fees, expert opinion fees; copies and printing fees and costs for filing, serving and uplifting Court documents and notices which could be done via an online court platform from the comfort of your home or office.

It is clear that online court processes may not be suitable or appropriate for all legal cases, especially where privacy is a concern, where a serious crime has been committed or children are involved. However, given the collective user experiences and information that have been shared globally by a wide range of legal practitioners, ranging from judges, attorneys and legal counsels to mention but a few, on how their country and jurisdiction has dealt with court proceedings during the lockdown, it is evident that online court proceedings are well suited for interim, procedural and interlocutory hearings, small civil claims, small petty criminal cases, civil appeals, administrative tribunals and commercial disputes.

However, online court proceedings are not without their predicaments. Global stories, experiences and shared information on remote courts globally have revealed that remote, online court proceedings do pose problems to security and privacy, given the ease with which security breaches can occur. Additionally, the digital technicalities of the online processes and platforms have proved difficult and confusing for older users, whether as legal practitioners, judges, claimants or defendants.

Furthermore, poor Internet connections may hamper the efficient flow of court proceedings and create, as oppose to resolve, translation problems that may arise where one of the litigating parties or their representatives do not understand the language of the court and require the help of an interpreter (as highlighted again by Susskind).

A rapid evidence review by Dr Natalie Byrom on the impact of remote hearings found that other problems presented by online court proceedings include the effect of the disassociation with a physical presence of a presiding officer and the grandeur of a courtroom, which leave litigating parties under-appreciating the seriousness or finality of the court proceedings. In light of this, they fail to seek legal advice or use the procedural safeguards that are available to them. Additionally, the use of video conferencing systems to conduct online hearings hamper the ability of a legal presentative to communicate privately and confidentially with their client in providing legal advice or explaining proceedings that the client may be struggling to follow or understand. Technical issues and difficulties with the online platform and systems being used for purposes of conducting online proceedings may not only hamper the smooth, free flow of legal proceedings but also carries the risk of ineffective participation by the parties involved in the case before the court. There is also a concern on not being able to monitor body language of litigating parties and/or their witnesses, negatively impacting on the credibility perceptions of parties and witnesses. Lastly, with remote hearings it may not be possible for a presiding officer and the court to access the vulnerability of a litigant or a witness and in light of same may not notice the need to make adjustments for effective participation or protection orders to ensure safety.