Impeding Technology – Legal Culture and Technological Resistance

Introduction

This paper is about a collision between the culture and symbolism that accompanies the administration of law and technologies that enable change and a different way of doing things yet are the focus of resistance. I argue that this resistance at its heart is cultural and has little to do with legal doctrine.

The particular technologies that I shall discuss are communications technologies that enable and facilitate remote hearings where the participants need not attend a courthouse for a hearing of their dispute. The resistance is, as I have suggested, cultural and is based upon a number of factors including the way in which the imagination and the image of the Court as a symbol is represented and the role that imagery plays in the perception of the delivery of justice.

This cultural aspect also has relevance on the way in which the Rule of Law is perceived within the context of the “Court as a Place”. I argue that whatever imperatives may have underpinned the “Court as a Place” model of the delivery of justice, they are no longer as relevant or meaningful as they once might have been and that new communications technologies allow us to reimagine and revisit the way in which justice is delivered.

Justice, the law and the Rule of Law have been characterized as a “looming omnipresence in the sky” in the sense that although associated with rules governing the behaviour of individuals and groups within society it has certain intangible aspects that render it a somewhat slippery customer. Yet it fulfils a role within government structures and provides a system for the resolution of disputes between individuals and groups or between the State and the individual.

Although, as I shall argue, there is an air of mysticism and symbolic ritual that surrounds the law and legal process, in its most essential and most basic manifestation the legal process is an exercise in information exchange. I argue that the means by which information is exchanged has had an impact upon the way in which the legal process has developed.

We are now in the Digital Paradigm with all the various different means of communication that are now available. These include the tools for remote working which allow us to reimagine the way in which the Court operates and yet maintain those information flows that are essential to the legal and judicial process.

I argue that resistance to such reimagining is primarily cultural that includes a reluctance to move from what could be called a cultural comfort zone. I further argue that there is a certain inevitability that remote hearings increase in frequency and become normalized as part of the process. Underpinning this argument is the fact that new communications technologies shape our communications behaviours which in turn influence or modify our values and our acceptance of different ways of doing things. The argument is summed up in Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us”.

Given that a court hearing is an information exchange, I shall argue that the assumptions that underpin the “Court as a Place” model or hearing may give way to what Professor Richard Susskind calls the “Court as a Service”.

I shall argue that those who prefer the “Court as a Place” model must be honest in recognizing that their adherence to that model is based upon deep-seated cultural preferences and assumptions about what the technology can do rather than upon any legal imperative.

The Rule of Law as a Benchmark for Technological Innovation

There is a school of thought that suggests that rather than rushing to embrace new technologies in the justice process, some caution should be employed in evaluating those technologies and whether they fulfil the objectives of the rule of law. 

The Chief Justice of New Zealand Dame Helen Winkelmann sets out a number of criteria that should be considered and against which new technological developments should be measured before their acceptance and deployment into the justice system[1]. However, the onset of the Covid 19 crisis accelerated the deployment of remote working facilities out of necessity, simply to keep the Court system, or aspects of it, running.

When read alongside an earlier paper that she delivered to the Criminal Bar Association Conference in August of 2019[2], the Chief Justice develops a theme that, whilst not necessarily suggesting that there should be little use of technology in the courts, suggests a certain conservatism,  a desire to maintain existing systems and an underlining sub-text that present systems, as far as they can be, fulfil the objectives of the rule of law. 

One of the abiding principles present in both papers is the recognition by the Chief Justice of the importance of physical presence by all the participants in the court system in the one place at the one time.  This focuses, therefore, attention upon the concept of the “court as a place” that fulfils a number of functions, some of them substantive, some of them procedural and some of them symbolic. 

This runs up against the views of Professor Richard Susskind, who considers that the courts of the future should be seen as “courts as a service” and that place should not matter.  In this regard, the Chief Justice, in her January 2020 paper, addresses directly and obliquely some of the issues that are raised by Professor Susskind in his advocacy for an on-line court or remote working system.

There can be no dispute with the proposition that the Rule of Law must be the standard against which technological innovation should be measured. The question that must be posed is whether the innovation proposed enhances or detracts from the performance by the courts of this task.

In a State living under the Rule of Law, the laws administered by the court must have a certain substantive content, affording adequate protection of fundamental human rights.  These human rights are necessary pre-conditions for equal access to the protection of law before the courts but it is argued that there is another element, which is that if society’s laws do not afford protection for these rights then those who sit outside the law’s protection have no reason to accept those laws or the decision of the courts.  Social cohesion, it is argued, is a necessary pre-condition to the rule of law and it is suggested that physical presence enhances that social cohesion.

The Courts as a Manifestation of the Rule of Law

Rather than providing a service, as suggested by Professor Susskind, the Chief Justice considers that the work the Courts do is more than that and is in fact a public good requiring a public performance by way of hearings in a local courthouse, involving participation and human interaction, which affords human dignity to those involved in civil and criminal proceedings.

This emphasis upon the “performance” aspect of the law is one of a number of criteria that support the way in which the Courts administer the Rule of Law. Among these aspects are

•   The existence of an independent judiciary.
•   The public administration of law.
•   The importance of the local courthouse to the rule of law
•   The work of lawyers is critical to supporting the rule of law
•   That the court hearing is a public demonstration of the rule of law in action
•   Public hearings exemplify fairness and legality

If technological innovation does not enhance one or more of these elements of the Rule of Law, then it can have no place within the system. The list of items all have certain common elements to them. The law must be administered in public – the transparency issue that I shall discuss shortly. That transparency, it is argued, requires a courthouse, with its attendant symbolism which I shall shortly consider. Lawyers are a part of that performance rite which demonstrates the law in action – again harking back to transparency – and fair and public hearings demonstrating this important aspect of the Rule of Law process.

Thus, to summarise the point thus far, within the Rule of Law model proposed there is an emphasis upon the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what is describes as the performative aspect or what I have characterised as the performance rite.

But does transparency involve the physical presence of all the participants in the same place at the same time? I suggest that it does not, and that the element of transparency can be achieved utilising technology.

Transparency

The Court has evolved as location where citizens go – or are taken – to air their disputes or have them resolved in a manner that is largely open and available. Thus, one of the criticisms of Remote Court Hearings (RCH) and the Online Court (OC) is the lack of transparency and thus represents an affront to open justice represented by public hearings.

Open justice and transparency suggest visibility of Court processes, procedures and operations, of information about the Courts such as data about cases and volumes as well as scheduling and the cost to the taxpayer.

The public should have access to advance notice of hearings, to a record of proceedings and information about the business before the Courts along with the substance of a determination or decision and an explanation or reasons for a decision.

Traditionally, hearings have been in a public forum in all but exceptional circumstances and the media should be present to report proceedings as surrogates of the public. This is what Professor Susskind refers to as “real-time transparency.”[3]

The remote hearing is criticized because it challenges “real time transparency”. In a completely on-line court there is no physical courtroom into which the public or media may venture. The question is whether or not this suggested “threat” is a real one.

The reality is that real-time transparency is more limited today than is acknowledged. We trumpet the openness and availability of courts but policies that involve closing down court houses and centralizing the administration of justice remove that aspect of transparency from local communities.

The difficulties in actually travelling to a Courthouse to benefit from that so-called transparency has its own problems including the availability of public transport or, if a private car is used, parking in a busy urban location. Only in cases of high profile criminal trials do members of the public present exceed the capacity of the courtroom to seat them. In most criminal cases those present are directly affected – complainants and their inevitable support networks or families of the accused.

This suggested loss of transparency suggests, in the minds of critics, that hearings will take place in secret giving rise to suggestions of “Star Chamber justice”.

This is patently unsustainable. With the multitude of communications platforms available Court hearings can be broadcast online. The case of State of Washington v Trump before the 9th Circuit Court of Appeals was broadcast over Internet platforms to an audience of over 131,000 people. In addition none of the Judges were in the same place but teleconferenced in to the hearing.^[4]

The issue of open justice and transparency can be addressed by providing for a stream of proceedings before the Court if there is a full hearing or, if the decision is “on the papers” the online publication of the reasons for a decision.

The Covid 19 crisis immediately challenged the concept of transparency of Court proceedings by virtue of distancing and gathering requirements as well as restrictions on travel. Although the Courts in New Zealand were considered an essential service, adaptations had to be made. In many cases defendants in criminal courts appeared by way of Audio-Visual links (AVL). Counsel were “present” by way of virtual meeting room or conferencing software that allowed for audio and video. In some case even the Judge appeared remotely as distinct from sitting in a Courtroom.

Importantly the media were able to join the Court remotely and participate in being able to observe and report the hearings as they might have done in real-time. Indeed, the ability of the news media to “attend” a number of courts without leaving news desks actually enhanced the ability of the media to report Court proceedings and act as surrogates of the public.

It may be seen from these examples that concerns about transparency that are associated with “real-time” courts have little substance in the face of technological solutions that are available for remote working.

A Fair Trial?

But there are some deeper criticisms of the RCH or OC model. Can a RCH or the OC deliver a fair trial. This raises the question of whether or not the work of the Courts must be conducted on a face to face basis to achieve a just outcome.

The question becomes one of whether the public hearing is equated with a physical one. Professor Susskind suggests that our concept of “public” has evolved as communications technology has improved[5]. Online access to meetings, lectures and events is considered “public”.

This has moved even further during the Covid 19 crisis when, for example, the Auckland Theatre Company “staged” an online and very public version of Chekhov’s “The Seagull” to international acclaim.[6] The New Zealand Symphony Orchestra performed online concerts during the Covid 19 lockdown and has and as at the date of writing continues to present very public performances online[7]. Thus, the Internet provides an element of public participation in terms of performance and the gathering of information.

The public perception of the administration of justice – of fair process and fair trial- through the Court system has four basic elements – all of them procedural. They are that all cases should be treated alike; that parties should be given the opportunity to state their case before a Judge who has no personal interest in the dispute; judges should be impartial and work within a judicial system that is independent and that cases should be judged and not the parties.

The issue is whether these elements require, as a pre-condition, first, a physical presence on the part of participants and secondly, that presence in a structure or building that is largely symbolic and associated with a number of seemingly arcane rituals that are the province of a select priesthood – the lawyers.[8]

What is more important, it is suggested, is that the decisions of the Courts are fair, the processes are fair and in accordance with the rules of natural justice, that the participants are satisfied that they are so and that access to the courts is available across the community at an affordable cost.

Perceptions of Participation

The remote working model, it is argued, challenges the importance of litigants being treated with dignity and respect and the importance of human interaction between litigant lawyer and Judge.

The argument is that the on-line or remote working model challenges parties’ perception of participation and the critical importance of the presentation of one’s case in court. These perceptions have a common theme which is that of the level of engagement that may take place during a Court hearing and the impact of a remote appearance as opposed to an “in person” one.

Associated with the level of engagement are what could be termed participatory elements operate at a more visceral level and could be summed up in the terms “the day in court” and “the face to face hearing” which has its origins in the concept of confrontation between accuser and accused. I shall first discuss the level of engagement and then proceed to consider the elements of the “day in court” and “the face to face hearing”. I suggest that none of these issues are compromised by a remote hearing.

Level of Engagement

This aspect could be described as the “level of engagement” and that an appearance remotely may mean that the participant is not as fully “present” as she or he may be in person.

Once again, the Covid 19 experience is instructive. Counsel have certainly shown as great a level of engagement working remotely as if they were present in Court. The amusing observation by one defence lawyer that she wore a working blouse and blazer on top and track pants out of shot seemed to have little impact upon her level of engagement in a 90 minute opposed bail application.

It has been my observation as a Judge dealing with accused persons via an AVL link that they are as engaged as if they were present in person – perhaps even more so for they are able to remain focussed on what is occurring on the screen rather than having informal and signalled communications with friends or family members in Court. 

Lambie and Hyland discuss the importance of these early interactions with the Court.

“the pre-trial period should be viewed in New Zealand as it is in other jurisdictions; as a window of opportunity to provide the appropriate wrap around service provision that is required by the individual and their whanau”.[9]

However important that part of the process might be, and I agree that it is, I do not see that a remote appearance compromises the matters raised by Lambie and Hyland. As I have observed, the level of engagement is just as high with a remote appearance as it is with an in person one.

In some respects the level of engagement can be higher in that the positioning and size of the screens upon which people appear can play a part. Professor Susskind referred to the value of a large high definition screen[10]. My only observation about that in the context of the New Zealand Courts in general and the District Court in particular is the positioning of screens which should, as much as possible, reflect the positioning of the participants as if they were present in person. This is a matter which will have to be addressed in Courtroom design or configuration if remote hearings are to continue and become a part of the Courtroom toolbox.

Another matter raised is that of trustworthiness but what really could be described as empathy where there is a perception that the decision-maker actually cares about the case. This arises as a result of the dynamic of the hearing but could be as applicable to the online as to the in-person experience. 

Finally, there is the issue of neutrality, which can take place within the context of an oral hearing in which the parties have an opportunity to be heard and where the Judge is seen to be paying equal attention to the arguments of each side. This is an important aspect of the “level of engagement” issue.

Participants must also remember that, as in a physical courtroom, they are always “on” and care must be taken to behave in an engaging, interesting, respectful manner.

These latter matters fold into another issue about participation and that is the sense that litigants are entitled to their “day in court”. This phrase carries within it a number of elements. One of them, fundamental to the Rule of Law argument, is that everyone should have access to the court process for the resolution of a dispute. But does that mean physical presence or rather the availability of the services that the Court offers?

The “Day in Court”

Will remote hearings or remote “presence” will deprive litigants of their “day in Court” or access to the dispute resolution services that the Court provides.  The first point to be made is that remote hearings or remote participation should be seen as one means of allowing for “presence” at a hearing. It is not suggested that all hearings should be conducted remotely.

A remote hearing would offer much of the essence of the physical presence offered by day in court, particularly as remote video technology improves. It would also offer a remote day in court to those facing difficulties in personal attendance. The growth and development of remote communication and familiarity with getting information from a screen may make determination of substantive legal rights in circumstances other than face to face less of a departure from the cultural norm than may be perceived at present.

The real question is whether or not we are prepared to deny citizens access to the services of the Court because of their inability to be physically present. Quaestio caedit.

The “Face to Face” Hearing

The “Face to face” hearing is based on the assumption that remote hearings will deprive litigants of “face to face” justice. This could well be a misunderstanding of the nature of the so-called confrontation right[11] and is an argument based more upon tradition and a reliance upon earlier paradigms than any rational justification.

The concept of the “human face” of justice is considered significant. This has been advanced by Dr. Ian Lambie and Olivia Hyland in two articles^[12] and has been articulated by Andrew Langdon QC in his inaugural speech as Chairman of the Bar of England and Wale who said:

“The humanity of physical presence is, I suggest, an important component in the delivery of justice…Being in the physical presence of a witness or a jury or a defendant or a Judge or your lawyers …..isn’t that fundamental to our innate sense of how justice should be delivered?…Justice has a human face, and its not a face on a screen…Many smaller cases benefit from getting everyone together in one place. The dynamic between the parties becomes evident; whether one side is unfairly dominating the other, whether one party is as well-heeled as the other.”^[13]

The underlying themes of these comments are that justice must be done in person, the participants must be able to look one another in the eye, claimants and victims need to meet face to face, the humanity of justice can only be done in a largely symbolic centrally located building, justice is personal and the playing field is levelled by physical presence.

Recent developments arising out of the Covid 19 crisis have demonstrated some of the fallacies about the necessity for physical presence. I have noted the evidence of Professor Richard Susskind to House of Lords Constitutional Committee, where he commented on the fact that remote hearings could be used to determine credibility issues and noted the advantages of the full-screen view of a witness.[14]

Susskind also raises the issue of the fact that one may get a sense of a person’s credibility and their demeanour by looking at them on a high definition screen where the video is close to the face. It should be noted in this context that there have been some critics of the importance of demeanour in the fact finding process. A considerable amount of importance is placed by some on demeanour. Does the insight that a Judge may gain from seeing a witness face to face be as frequent or as accurate a perception in the remote hearing.^[15]

The issue of demeanour as a guide to truth telling and the reliance upon non-verbal cues as an aid to assessing credibility has been the subject of a considerable body of literature from the field of the behavioural science, and the overwhelming conclusion is that demeanour is not a useful guide to veracity.[16] 

There is no philosophical nor empirical justification for a need for face-to-face interaction – especially in the Internet age. The rules of natural justice are not threatened by the remote hearing model and there is certainly no constitutional principle that requires that justice can only be achieved where there is a form of face to face resolution. The issue of the “face to face” critique is met by the deployment of video systems to create a “virtual” or “online” court and the improvements in technology as noted by Professor Susskind may well enhance the evidence giving process.

There can be no doubt that the critics of RCH or OC believe that a move away from physical hearings is a retrograde – indeed fatal – step for the administration of justice. For most of our lives we have one conception of the resolution of disputes through the Court process. We have become attached to the environment that has provided us with careers and for a great many with prosperity. It is hard to conceive that there may be radically different ways of achieving the same outcome. We are culturally attuned to our way of attempting to achieve justice and in many respects we tend to support that cultural acclimatization with almost mythical and symbolic elements.

The cultural aspect of presence-based arguments have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication. 

The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago.  Only when new technologies came into play, such as the development of the printing press and its impact upon law and legal culture, were there small and incremental changes in legal culture. 

One of these changes involved reliance upon printed materials as a record of what the law was.  As Lord Camden said in Entick v Carrington^[17] “if it is not in our books it is not the law” and, in saying that, he was summing up the importance of the printed record as law as opposed to the concept of immemorial custom that had been a feature of earlier iterations of the development of the English legal system.

Up until the 1930s and the development of digital systems, all of our communications took place within the context of what could be described of analogue systems such as print, radio, wireless, television and the like.  Only when the internet went public in the early 1990s did the real digital revolution take place. 

Within this context, the number of different methods and systems of communication arose – all of them deploying digital technologies.  This may not mean a lot but, in fact, it is important when we consider that the presentation of a court case, with all of the cultural aspects referred to, involves an information exchange. The advantages of new technologies are that the abilities to engage in that information exchange are enhanced and improved.

It is to the cultural and sub-conscious preferences for the in-person model that I shall now turn.

  Cultural Issues

In the next section I shall develop the argument that many of the reasons for opposition to remote hearings and online courts are based on cultural habits and expectations rather than having anything to do with the integrity of the law.

Legal culture, in its most general sense, is one describing relatively stable patterns of oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the way judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do.[18]

In this section I shall consider the way in which legal culture is represented in image and otherwise to demonstrate some of the ways in which the Rule of Law is represented that has little to do with its real purpose but rather creates a psychological mythology of how those in power wish the law to be perceived by those whom it governs.

Court, Culture and Information

The trial is the law’s high theatre. The Courtroom is a stage and the participants are the players. Some, such as witnesses, have bit parts. Some are major players – on stage throughout the whole performance. It is little wonder that trials – especially criminal trials – feature so frequently in literature and in entertainment. The trial scene in Shakespeare’s ”Merchant of Venice” is gripping drama as well as being a showpiece for a number of jurisprudential theories. The trial is a set piece in Harper Lee’s “To Kill a Mockingbird” and the film “Witness for the Prosecution” is the trial itself. The trial dynamic brings all the players into the one place, with the classic dramatic formulae of human interactions, conflict and denoument. Television is replete with lawyer shows in which trials feature – “Rumpole of the Bailey” and “Silk” provide two examples.

Of course the trial is more than that. It is a critical part of a State provided dispute resolution process that has evolved over the centuries and is characterised by elegantly moderated reasoned arguments supported by specialised information which lawyers call evidence.

In the same way that the practice of law involves the acquisition, processing, sharing and communication of information, likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges’ Clerks.

Thus, a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management.^[19]

Courts and Communication

Historically the conduct of a Court hearing has involved an oral exchange. This practice developed simply because there was no other way to convey information. Those who had a grievance would bring it before the chieftain or ruler and would seek redress. What we understand as the Rule of Law in its most embryonic form was to prevent the destruction of the members of a community or even the community itself by retribution or blood feuds.

Judges became the proxy for the ruler or, in the case of England, the King. Whereas the King would hear disputes in his court, so Judges adopted “the court” as the central place for hearing and resolving disputes. In England the Royal Courts occupied sections of Westminster Hall. The King’s Judges did not sit permanently in the Courts that were located in the towns and cities. They attended regularly at Assizes.^[20]

Written pleadings were not a feature of the early Courts. The entire process was an oral one, although written pleadings did become an important part of the court process. A misdrawn pleading could result is a dismissed case for want of form.[21]

That this model continued through into the nineteenth and twentieth centuries is quite understandable. The technology simply was not available to conduct a hearing in any other way. The advent of the printing press presented a means by which legal information could be accurately recorded, standardized and duplicated^[22] but this had little impact upon the way in which Court cases proceeded, although, as has been observed, printed law gradually achieved a level of acceptance whereby it became sufficiently authoritative to be relied upon by Judges as a source of law.

Although significant procedural changes came about with the merging of the Courts of Common Law and Equity perhaps the first technological innovation arose as a result of the use of the typewriter, and carefully crafted copperplate manuscript pleadings gave way to typewritten ones. Other technological innovations became a part of the Court system. The telephone as a means of communication between Court and participants became routine. To the dismay of many judges innovations such as the photocopier allowed for the presentation of large amounts of information and so the means of information transmission began to improve and increase. Despite the occasional incident of resistance to the use of a new technology it is doubtful that its introduction was opposed on the basis that it would result in fundamental or do substantial damage to the Rule of Law.

Rather, I would suggest, the acceptance of technologies such as evidence of tape recordings and closed circuit TV, evidence of tape recorded or video recorded evidential statements, the use of sound recording for the purposes of creating the Court record have all been accepted with little resistance. Perhaps this is because some of the apparent fundamental aspects of the court hearing have remained intact – the oral hearing, the gathering together of all the parties and witnesses in the one place in a Court – a word that echoes the Royal origins of the process – remain.

Yet the basic method of conducting a case – bringing information before the Court so that the fact finder may process that information and in turn reverse the flow of information back to the parties – remains.

Symbols, Imagery and the Culture of Law

But around the very basic process of information exchange a certain mystique, ritualism and symbolism has developed. This has to do with the mythologizing of the legal process – elevating it in importance as an aspect of the Rule of Law. But these mystical elements must give way to new and different ways of achieving the outcomes that the legal process seeks. As the legal process has done in the past, the adoption and use of new technologies may achieve this and at the same time maintain and enhance its relevance in the hearts and minds of the citizenry.

The Symbols of Justice

Societies have sought to define the nebulous virtue of justice through visual allegories and metaphors, along with libraries of books, articles, tales and parables written and told to imbue the abstraction of justice with meaning.

The management of image in the service of power is well known in modern politics although imagery and symbolism has played a part in depicting and representing power structures, along with other abstract ideas, throughout history^[23]. Much of this symbolism is represented in art, objects or architecture. The law is no stranger the use of symbols and other representations to enhance or solidify its importance in society.

In Ancient Greece Themis – a Titaness – is described as “[the Lady] of good counsel”, and is the personification of divine order, fairness, law, natural law, and custom. Her symbols are the Scales of Justice, tools used to remain balanced and pragmatic. Themis means “divine law” rather than human ordinance, literally “that which is put in place”, from the Greek verb títhēmi (τίθημι), meaning “to put”. Her Roman equivalent was Iustitia.

Themis is perhaps the most recognizable symbol of justice and her statue may be found in many Court locations, perhaps the most recognizable to those of the Anglo-American tradition as the figure on the dome of the Old Bailey. She is referred to as Lady Justice and is often portrayed not only with scales but also with a blindfold, a further symbol within a symbol, representing the impartiality and objectivity of justice.  Her scales represent weighing competing arguments or propositions and the sword is the sword of power and punishment.  In some representations a snake appears under her foot, representing the overcoming of evil as well as, latterly, a book representing a source of law[24].

In earlier imagery she was not seen as standing alone but was flanked by Temperance, Prudence, Fortitude and other classical virtues. With her sisters relegated to antiquity, however, justice has come to be treated as a self-sufficient ideal, a secularized cardinal virtue for the moderns.

She is the totem onto which Western societies have projected their concerns about power and legitimacy. Her omnipresence is a visual reminder of John Rawls’s famous dictum that ‘justice is the first virtue of social institutions’.

This image is perhaps the most recognizable of justice and its association with Court.

The Courthouse

The courthouse as a central location for the administration of justice is frequently portrayed as an imposing structure, often harking back to classical elements. Examples may be found in the United States Supreme Court Building or the imposing, almost overpowering façade of the Royal Courts of Justice in London or the Palais de Justice in Paris.[25]

The architecture of courthouses frequently incorporates pillars or similar architectural motifs. The pillars represent strength and sustainability, representing a reliable justice system.

Frequently the neoclassical architectural style that characterizes the United States Supreme Court along with many other Courthouses in the United States reflects the desire of the State to connect with a mythical past or ideal of justice embodied by Graeco-Roman temples or other famous buildings of antiquity. Indeed, court construction at a national, regional or transnational level is deeply self-conscious, engaged with history by seeking to embrace and link to traditions and often culture.[26]

On the other hand because the imagery of justice has been deployed to sanction power, the handful of images that suggest that justice might sometimes require defying the law are powerful and haunting. The South African Constitutional Court has been built on the site of an apartheid-era prison, and preserves the marks of decades of abuse perpetrated within its confines.

The murals that adorn the Mexican Supreme Court provide equally visceral reminders of egregious and arbitrary uses of state power. Rafael Cauduro’s arresting images break with the usual piety of courthouse art in  which justice is represented as the guiding light of a benevolent state, and instead depict acts of torture, rape and mass murder carried out by agents of the State.”[27]

These representations of justice within the context of a Courthouse – location in the case of South Africa – murals in the case of Mexico – stand out as reminders of the importance of justice in opposition to the arbitrary use of repressive State power and the important function performed by the Rule of Law to protect the rights and dignity of citizens.

However, more recently we witness the grand architecture of courts being eschewed in favor of multipurpose ‘law enforcement centers’ that fulfill a range of bureaucratic functions. The contrast between the visual grandeur of traditional courts and the invisibility of new forms of adjudication underlines the fact that the latter are much less accessible to the public even though they ‘decide the rights and obligations of hundreds of thousands of individuals’.  

Even in the case of administrative hearings that as a practical matter, everyone has the “right” to attend’, the proceedings are physically difficult to locate. Perhaps, given the developments in modern Courthouse design, our representation of justice as of the imposing, powerful, symmetrical and even handed is itself being mythologized.

Ritual

Courtroom ritual fulfils a number of functions. What to many may seem to be a somewhat unusual sequence of bows when a Judge enters the courtroom is a mark of mutual respect for the participants in the process. The somewhat arcane language – “May it please your Honour” – is indicative of respectfulness and for some provides a path in to the development of an argument.

If anything it is in the rituals of the Court that we see the greatest practicality of the process. In essence the Court provides a forum for competing arguments. Despite the drama and raised voices that one sees in American courtroom TV shows, the argument that is carried out in Court is very restrained and conducted, for the main, rationally and within a very constrained framework. Raised voices are not tolerated. Personal opinions are eschewed in favour of the advancement of a proposition. “I think” is replaced with “I submit”.

Yet in many respects this means of presentation of an argument in itself represents a move towards a comfort zone. True, the development of advocacy has taken place over a number of years and has reached a point where there seems little room for innovation. But at the same time it represents an aspect of comfort with process that itself obstructs any suggestion that there may be a better or more effective way of presenting a proposition[28]. For this reason, despite the obvious advantages of modern advocacy allowing a number of technology enhanced forms of presentation, I consider Courtroom ritual to be an aspect of cultural impediments to change.

The Imagery of Justice

The symbols, imagery and architectural styles are part and parcel of the representations that to an extent mythologize justice to the point where those symbols become cultural imperatives for the way in which the system is required and expected to operate. Within many Courthouses are great halls, entry porticos, in some cases doors engraved with symbols, conspicuous images of national identity such as coats of arms or other forms of constitutional iconography representing or portraying legitimacy of what takes place within the temple-like structure.

The Courtroom or courtrooms themselves and their location in the building often structurally or by way of positioning represent the hierarchical nature of the law and indeed the legal establishment. Many Courthouses have a large main Courtroom, often used for ceremonial purposes, surrounded by a number of smaller Courtrooms. Within these ceremonial courtrooms, often replete with large paintings depicting Jurists or Heads of Bench, the rituals and cultural underpinning of the law are enhanced. On ceremonial occasions in New Zealand Queens Counsel are seated in order or appointment and are called upon in that order for no other purpose than to recognize their presence – a process that is mystifying to members of the public who are not members of the legal “priesthood.”

The Courtroom itself contains its own hierarchies with a raised bench, counsel’s table – prosecution or Crown at the front, defence behind for no other reason, like many legal cultural practices,  than that is the way that it has always been –  and the public behind a bar beyond which only certain persons may pass.

In appellate Courtrooms the design is usually very symmetrical with equally symmetrical seating for the Judges, the President or the Chief Justice in the centre. Once again the quaint and polite rituals take place. Before the Judges are seated and before they bow to those in the Court they bow to each other.

Apart from the central seat, the seating of the Judges represents the egalitarian nature of the Judges who occupy the same bench, although that said in most of the top appellate courts the judges sit from the centre based on their seniority. Seniority is another quaint aspect of the imagery of legal culture.

The layout of the Courtroom is reminiscent of a place of worship – the Bench is in the place of the altar and often behind it is a form of iconography be it a flag or other national symbol like a coat of arms. The area before the Bar where counsel and other officers of the Court may take their place is akin to the sanctuary – an area reserved for the priesthood – and the public gallery seating is similar to the pews in a church.

The impact of the imagery of justice and especially the Courthouse is not restricted to those attending.  The images of Court buildings appears countless times in newspapers, television and online in any number of places owing to an intense focus on Court hearings from national media coverage. This use of the imagery of justice enhances the perceived power of the Court, adding to the cultural significance of the legal process.

At the same time the top appellate Courthouses perpetuate the imagery and representations of justice by being not only symbolic of government authority but, as they become empty of the business of judging and evolve into museums for school children and destinations for tourists, they are becoming themselves symbols for courts.[29]

The Majesty of the Law

So far I have demonstrated how the symbolism of the law has become part of the cultural heritage of those involved in its practice and administration. To interfere with the symbols and images of the law would at best be culturally uncomfortable and at worst be seen as rending the fabric of the Rule of Law. And in many respects these elements underpin the issue of “the majesty of the law” as an aspect of the Rule of Law and which is used as a reason for applying the brakes to technological change.

Andrew Langdon as Chairman of the Bar in 2016 in his inaugural address made reference to the “majesty of the Court.

“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometime put, the “majesty” of the law. The historic prominence of a court building in the municipal setting demonstrates that our ancestors understood it also. Whereas no one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the Court are only in the virtual presence, rather than the actual presence of judicial authority.”^[30]

Those who see the law and its administration as “majestic” and remote hearings as being an erosion of the “majesty of the law” need to give careful consideration to the purpose of the legal process. At the moment the court system is hard to understand, hard to access, marginalising for many and reserved for the few who can afford it. Coupled with that, it retains elements of kinetic presence and orality that have been part and parcel of the system since the Middle Ages.

One must add to this the fact that many of our Court buildings are anything but majestic, apart from the occasional imposing temples such as the United States Supreme Court building in Washington DC or the Supreme Court building in Wellington, New Zealand. By and large our Court buildings are shabby and run down. As Professor Susskind says “To celebrate our court buildings again runs the risk of lapsing into romantic transcendentalism.”^[31]

Indeed, I would suggest that it is not “majesty” itself that is the fundamental value. It is not an intrinsic good, important for its own sake. Rather than a “majestic” system we want a system that is authoritative, respected and supportive of the principles of justice to which I have already referred.

Furthermore the system should be relevant and not detached from the mainstream lives of citizens. It should not be intimidating and should reflect modern standards and understandings. The court system should not exist as a majestic rarely used physical system, little understood and at the periphery of the lives of citizens. It should be effective, meaningful, authoritative, relevant, respected and understood as part of the mainstream of a society under the Rule of Law.

The use of cameras in Court have assisted in public education and have increased public awareness of the way in which the Court process operates and have not derogated from the solemnity of the Court as an institution nor its processes. The UK Supreme Court live streams its hearings and a similar proposal is in train for the New Zealand Supreme Court. Some Federal Appeal Courts in the US also live stream. The US Supreme Court needs to rethink its attitude to cameras in court.

Remote hearings will increase the necessary legitimacy to and confidence in the legal process by providing an effective additional means to access the justice system. The alternative is for litigants to migrate to other forms of private sector dispute resolution, simple because the State is failing in its duty to its citizens

Fundamental to the Rule of Law is an effective State provided mechanism for the resolution of disputes. An effective, popular, authoritative and respected Court system that embraces new communications technology to further its purpose should underpin and help maintain the Rule of Law.

The Comfort Zone

It is perhaps within the realm of cultural comfort that the innate conservatism of many lawyers lies. The mantra goes “this is the way that we have done things in the past and it has worked and there is no need to change.” This mantra, of course, ignores the fact that law and particularly the legal culture associated with it does change albeit slowly and at times imperceptibly. In essence this mantra calls upon the traditions of law as a validation for continuing past practices. But tradition itself cannot act as a justification unless there is some rational basis for its continuation. And the problem with tradition is that is is constantly facing the winds of change and the dynamic of the human condition.

I have already commented on the role of the printing press – the first information technology – and its dynamic impact on legal culture. The shift from an understanding of the underlying communicative qualities[32] of the printing press, although recognized by some legislators such as Thomas Cromwell and by those who wished to advance a particular view of the law such as Sir Edward Coke, to a positive cultural shift in the recognition of the fact that the fixity of print and its incorporation in a book enabled the certainty that the law demanded along with its authoritativeness took some 284 years from the publication of Littleton’s Tenures in 1481 to the dictum of Lord Camden in Entick v Carrington.

There were other dynamics in the law. The development of the adversarial criminal trial with counsel playing a part provides an example. The evolution of the criminal trial from a lawyer free to a lawyer dominated model and the slow recognition that there was a taxonomy of types of evidence developed over a period of a century from the 1690’s when counsel were permitted in Treason trials to the 1730’s when judges allowed counsel to cross-examine witnesses to the greater involvement of counsel in arguing points of law by the 1780’s.[33] It may be surprising to some that the criminal trial process is a relative novelty when one considers the reach and scope of legal history.

There are other examples of dynamic change in the law and in legal processes. In my years of practice I have seen the Criminal Justice Act 1954, the Criminal Justice Act 1985 and the Sentencing Act 2002 along with the Criminal Procedure Act 2011 all of which introduced significant changes in criminal procedure. These were not opposed or decried because they challenged “the way we have always done things”.

There have been other examples of the dynamic in legal culture. One example may be seen in the abandonment in New Zealand of the need to wear wigs and gowns in the Senior Courts. Wigs and gowns are now retained only for ceremonial occasions, vested as they are with calls upon professional traditions. Yet the move for change was met with considerable protest, and is still decried by some traditionalists. Now only a black gown is worn in the Senior Courts and in the District Court for criminal jury trials.

The dynamic has reached the Judiciary. Imperceptibly and certainly without wide debate, although I imagine there were some terse exchanges in Senior Court common rooms, the formal ceremonial red robes of Her Majesty’s Judges has given way to a black gown with a motif panel upon it and the full bottomed wig, harking back to Restoration days, has been consigned to the cupboard.

Yet I suggest that what I call cultural comfort or continuing to do things in a particular way because that is the way that they have been done underpins much of the resistance to procedural change in the way in which cases are presented in Court. I further suggest that the elements of the Rule of Law that allow for transparency and public performance do not require the symbolic elements of the quasi-religious temples of justice nor can their continued use to the exclusion of other alternative means of delivering justice be justified on what is a self-perpetuating representation and imagery of what the Rule of Law is imagined to be.

How Culture Changes With Technology

In this section I shall argue that new technologies may act as drivers or agents of change in behaviour, values and culture. I shall propose that the pace of change has accelerated and indeed in terms of communications technologies, the digital revolution has ushered in a new communications paradigm – the Digital Paradigm.

Paradigmatic Change

I have suggested elsewhere that digital communications systems have resulted in a paradigm shift in the way in which we communicate and in our responses to and expectations of information. This arises from the significant properties that digital communications systems bring to bear and how they enable the differing views that we have of the communication of information.[34]

Changes in Behaviour

Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us” pithily sums up the way in which our inventions and tools affect behaviour. Once the tool becomes a part of what we do it changes how we do it and in the long term may have an impact upon other aspects of our lives and ultimately our expectations and values.

In the past there has been a gradual progression of new communications media. The printing press was the first information technology and until the mechanisation of print was introduced, there were no major changes in the way in which the technology operated. The types of content that print produced expanded but the real “reach” of print became possible with industrial printing and much larger print runs than were possible with the hand operated press. The technology and its particular underlying properties, however, remained the same.

The next step on the communications media progression was the introduction of telegraph – the long distance transmission of text or symbols without the physical exchange of an object bearing the message. Semaphore, beacons and reflected light signals (heliograph) are forms of telegraphy but it was the use of electricity that enabled the development of telegraphy in the early nineteenth century as the next development in communications technologies. Telegraphy was followed by the telephone – another one to one technology that enabled communication by voice – wireless telegraphy in the 1880’s and from this communications innovation came radio and television in relatively rapid succession.

The time lapses between the introduction of these various technologies reduced considerably and the pace of change accelerated. But each technology was a discrete development. In addition, transmission of information required significant investment in infrastructure so that the deployment of capital intensive communications technologies such as radio or television was only possible by means of centralised organisations. In addition, there was no real convergence of technologies although television could be considered a form of radio with pictures. But it certainly became more than that.

Each of these communications technologies brought to the table a new set of characteristics or properties that modified those of earlier technologies or introduced new ones. The effect of this was that the expectations and behaviours surrounding information communication changed. Furthermore, the development of these various technologies meant that the range of means by which information could be acquired increased as well. But in terms of information flows, communication was virtually one way – from the originator of the information to the audience. Unless one was a member of a live radio or TV audience, participation in information flows and in the creations of information in response to that received was nil.

This has all changed with the development of the Internet and the various communications protocols that are “bolted” on to it. Effectively what has happened has been the convergence of communications technologies so that users may send and receive information from the one place, virtually at the same time in a seamless fashion.

I suggest that the new communications technologies that have become available on the mass market for mass consumption have resulted in changes in behaviour.

As behaviours change their validity becomes accepted as a norm and as an acceptable aspect of life. For many private conversations in a private setting via mobile phone are perfectly acceptable. There is an expectation that there will be an element of privacy accorded to such communications.

Indeed the mobile phone has drastically altered behaviour by virtue of the fact that it makes subscribers available 24/7. No longer are business communications restricted to the office setting and although this is seen as an added pressure of business it is accepted as a part of life in the Digital Paradigm.

The smart phone provides a smorgasbord of communications options in addition to voice communication. It enables text messaging, video messaging, access to the Internet and communication – both voice and video – by a number of apps that have been made available by third party developers.

Changes in Assumptions about Information

Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

In some respects the paradigm shift can be seen in an inter-generational context. Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm.^[35] He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.^[36] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, Flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

Expectations of information

Along with intergenerational changes in assumptions about information, our expectations of information change as well and many of those expectations are based upon assumptions which are largely developed and perpetuated by digital natives.

One only has to consider the use of the phrase “for further information go to www…….” to understand that the information that has been presented is often not the full story, that there is another source for that information, that there is a greater volume of detail of information about the topic at that source and finally that everyone is going to be able to access that source. The source, of course, is Internet-based and so the expectation is that detailed information can be found on the Internet. The assumption that drives that expectation is that everyone has access to the Internet and despite the fact that Internet uptake in New Zealand is high we know that is not the case.

Another aspect of information expectation is that of immediacy. Exponential dissemination couple with searchability and retrievability make information almost instantly available. The ability that large segments of the population have to be able to fact-check on the spot means that we are reluctant to wait for the 6 O’clock news or the next edition of the newspaper. Indeed, with online versions of newspapers readily available the presence of the newspaper on the breakfast table has become redundant and is replaced by the iPad with access not to one newspaper but to thousands.

Our expectations of information are shaped, as McLuhan observed, by the very underlying qualities of the technology that we fail to understand or recognize because we are fascinated by and are continually seeking out content.

Information Expectations and the Courts in Covid 19

The Covid 19 crisis in New Zealand and indeed in many other countries forced Courts to examine how they communicated at a time of extreme social distancing and lockdown which restricted travel and availability of counsel and participants in Court proceedings. Audio Visual Link (AVL) appearances by prisoners in custodial remand had become routine following the introduction of the Courts (Remote Participation) Act 2010[37].

The technology that was available for AVL did not allow for multi-party participation and the Ministry of Justice had to move swiftly to find some tool that could allow for virtual appearances. It was necessary to scale back the types of cases that could be heard during the most extreme phase of lockdown but the use of conferencing software enabled multi-party participation in those cases that were heard.

As the restrictions have eased the level of personal participation in Court proceedings has increased. It is still possible, and for many lawyers preferable, to appear remotely where that is appropriate.

A consideration of the information expectations that arose as a result of the use of remote technology for Court appearances demonstrate how information expectations morph into behavioural patterns.

1. That it could be done in the first place
2. That, apart from some initial technical difficulties, it provided workable solution
3. That it enabled a court appearance without the necessity for travel to and from Court
4. That it enabled a number of court appearances in sequence and by appointment that might have taken a considerable amount of travel time to accomplish were they to have been in person
5. That in between virtual or remote appearances there were opportunities to attend to other work thus maximizing productive time
6. Importantly that a remote appearance did not do violence to the Court process or to other aspects of the Rule of Law

The wider use of remote technology developed within an existing legal and statutory framework that gave it legitimacy but was accelerated and indeed proven effective by a crisis.

Although this cannot be said to be a perfect means for introducing technological change it was necessary for the continuing function of the Courts. The duration of the lockdown and Alert Levels in New Zealand have not allowed for the use of remote technologies to become firmly embedded in the process and it is a matter of regret for some that the Heads of Bench prefer a move back to “in person” appearances when the requirements of Alert Level allow it.

This challenges the expectations that many lawyers have developed around the use and effectiveness of remote court technologies and will be seen as many as a retrograde step that ignores the way in which the effective communication of information in the Court process may develop, notwithstanding statutory provisions to the contrary.

Final Thoughts on Cultural Change

In the conclusion to my book Collisions in the Digital Paradigm I made the following observations.

“Digital information systems have revolutionised our approaches to information in all its aspects. This revolution has ushered in a paradigmatic change in the way in which we communicate and deal with information. This has had an impact upon law and upon lawyers.

Legislators, wedded to a process that is by its very nature deliberate and deliberative, struggle to make rules that are applicable for the foreseeable future. The problem with that this process is that it collides with continuing disruptive change and a society the dynamic of which is in a continuing state of flux as the next new “new thing” comes along. And change is incredibly fast. Facebook was founded in 2004. [Sixteen] years later it has become almost the “establishment” of social media platforms.

Judges develop rules on a case by case basis while, on occasion, developing broad principles applicable to certain type of activity. There are a number of limitations to the judicial process in developing rules for a rapidly developing paradigm. One is that cases are decided upon the evidence that is available – within the parameters of the pleadings, issues and argument. And on occasion that evidence may be limited, incomplete or misunderstood. Another limitation lies in the judicial process and the care that must be employed in ensuring that the examples and illustrations used in judicial reasoning are applicable and appropriate. A third lies in the fact that cases decided about one technology may not be applicable to another. And then there is the problem of too much information which may obstruct the development of principle based precedent.

For lawyers, for whom information rather than time is stock-in-trade, the new paradigm has been challenging. But on the positive side lawyers have available more information, more means of communicating more quickly, more opportunities to enhance workflow methods, to automate the standard and repetitive tasks so that they may focus upon the areas of work that require the delicate, specialist, case specific approaches to client problems, to obtain information from a myriad of alternative sources and to communicate that information along the various flow paths to clients, to colleagues and to courts as the case may be. And one of the stunning successes that has been achieved by lawyers and rule makers in the law and technology field has been the development of e-discovery rules. Technology has not only driven change. It has, in some jurisdictions, been the catalyst for innovative approaches to fundamental discovery principles.

Technology is not the master. It is a servant. But as the printing press was described as an agent of change in the early-modern period, so the development of information technologies based on digital systems are agents of change. I suggest that the agency is perhaps more powerful than that of the printing press, simply because the qualities that underlie digital systems and that acts as enablers of behaviour are more powerful than those of print.

The pervasive way in which digital technologies have inserted themselves into our lives means that their influence, although obvious in some contexts, will be more nuanced in others. The influence of technology on behavioural norms and the values that accompany new behaviours and that underpin law is a continuing story and will be for some time. The long-term impact of the Digital Paradigm may be much wider than we may think at present.

When I looked at the changes that took place when lawyers encountered the first information technology – the printing press – I noted that change was gradual, incremental and slowly progressive, marked by co-existence with earlier information systems. Certainly co-existence of technologies is still a reality. As I looked out over my Law and IT class, among the host of laptops were students still employing scribal note-taking techniques that were used before the advent of print.

But unlike the early-modern period the pace of change in the new millennium has been infinitely faster and many lawyers have adopted and deployed new technologies with enthusiasm. These practitioners are probably the exception for lawyers and judges are not renowned for technological enthusiasm and technology driven innovation.

But if law and rule making in the digital paradigm is going to develop properly – at both the legislative and judicial level – there must be a proper understanding not only of what the technology can do but how it does it and the way in which the properties of digital technologies impact upon our pre-conceived understanding of information and its use. The message is in the medium and it is the medium – the technology – that must be understood. And care must be taken not to obstruct the potential and the opportunities that the technology may make available for society.

As with an understanding of technology so a recognition of the benefits that technology may bring to the table not only of substantive law but of the Rule of Law itself. Perhaps one of the most encouraging developments in the law and technology field is that of the moves towards on-line systems to enable citizens to seek remedies to which they may not otherwise have available as a result of cost, location or a lack of understanding. The development of on-line dispute resolution using technology – be it by means of private arbitration or mediation or by the provision of on-line courts by the State – may well revolutionise our understanding of access to justice and become the high point of technology use in the law.”

Recognising Cultural Artifacts.

The development of remote working within Court was, as I have observed, born out of necessity although it was foreshadowed as long ago as 2010. As I have demonstrated in this paper, many of the important and significant aspects of the Court within the legal structure do not depend upon imagery and symbols, upon building and icons, upon physical presence and performance. These are cultural artifacts that are unnecessary to the proper performance of the Court as a manifestation of an ordered society under the Rule of Law

In saying this I do not understate the vital importance of the function of the Court in society rather than as a symbol. The Court must continue to be seen as a place of resort for citizens – the alternative to the rule of the mob or the rule of the vigilante. In many respects the Rule of Law survives, although as we have seen in recent riots around the world the veneer of civilized behaviour is thin, because the alternative is too awful to contemplate. Yet it must be a matter of concern that there are occasions when mass behaviour renders the Rule of Law, adherence to the law and its enforcement powerless – an outcome which although rejected by politicians is, by their inaction, condoned.

The Rule of Law, in addition to those matters identified by the Chief Justice, requires acceptance. Acceptance is demonstrated by a recognition that it is the Court that will achieve adherence to the law by ensuring just processes and outcomes. Acceptance is critical, as is the case with all systems of authority, lest it become a tyranny. And in doing so the Court must employ systems that are apposite, understandable and relevant. For the new generation of Digital Natives, the rejection by the Justice System of means of communication and information sharing that are part and parcel of their paradigm will render that system quaint, old fashioned, out of date and irrelevant to their needs and expectations of how an information sharing system should work.

In saying this I do not for one moment propose nor indeed suggest that the justice system is perfect. It is, after all, a human construct, despite all the mythology, iconography, tradition and symbolism. I am not one of those transcendentalists who set their sights on an idealized concept of a just court service.

Rather I consider Voltaire’s observation that “the best is the enemy of the good” – what Professor Susskind refers to as Voltaire’s Riposte – as applicable to the way that we develop Court processes. Susskind uses Voltaire’s Riposte in the context of online courts.[38] I shall apply it to remote court hearings. Although a remote appearances may have some drawbacks, they will amount to an improvement on a system that struggles to properly schedule and dispose of cases in a manner that is suitable to participants. Remote working means that there may be participation without the attendant logistics of attending a centrally located building

Remote working will also provide a satisfactory means by which there will be better access to the services that the Court provides and that presently require the disincentive of personal appearance with all its attendant difficulties.

The Courts can be improved and it is conceded that remote working is not going to make our Court system the best. But it will enhance the Court system by making it better than it is at the moment, thus maintaining what is good but recognizing that the best is unattainable. Consistent with Voltaire’s Riposte remote working opens a new way of working which must be better than the old.

Conclusion

In this paper I have advocated the use of technology in the Courts to provide an alternative way of allowing appearances at Court. I have not gone so far as to advocate an Online Court. That is for the future.

Remote working is authorized by statute and the technology for it is available. It conforms with some of the fundamental procedural requirements that underpin our perceptions of the Rule of Law.

I have been critical of the support for maintaining present Court practices to the exclusion of alternatives. I make no apology for that stance. I fail to see how appeals to tradition and a reliance upon a form of cultural mythology about the “majesty of the law” can exclude the use of systems that demonstrably enhance the way that the law can work and be effective, can be meaningful and can be relevant.

I do not suggest for one moment that remote working should be used for criminal jury trials. There is limited provision for its use in Judge Alone criminal trials. There will be other processes where it will not be useful or apposite. But those occasional circumstances should not dictate that remote working has absolutely no place in the Court system.

Rather I advocate that it is one of the smorgasbord of technological communications tools that is available for a system that depends upon the effective communication of information.

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[1] Dame Helen Winkelmann “A Framework for the future; Technology and the Rule of Law”, delivered to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020 

[2] Dame Helen Winkelmann ““Bringing the Defendant Back into the Room” Criminal Bar Association Keynote Address 3 August 2019 https://www.courtsofnz.govt.nz/assets/speechpapers/Keynote-speech-Annual-CBA.pdf (last accessed 11 June 2020)

[3] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 194.

[4] The audio is still available from the website of the 9^th Circuit http://cdn.ca9.uscourts.gov/datastore/media/2017/02/07/17-35105.mp3 (last accessed 15 March 2017)

[5] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 203

[6] https://www.youtube.com/watch?v=sbqHG1m4alE&list=PLNaT-ciUkjcf5ii_CSGP8BleRpTOiVkkv (last accessed 5 June 2020)

[7] https://live.nzso.co.nz/

[8] Given that historically clerics comprised a large part of what could be considered the medieval legal profession, some might think that apart from secularization, not a lot has changed.

[9] Lambie and Hyland “The Opportunity of a Lifetime” [2019] NZLJ at 223.

[10] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020 reported in Legal Futures 4 June 2020 https://www.legalfutures.co.uk/latest-news/remote-hearings-can-deal-with-credibility-issues (last accessed 5 June 2020

Giving evidence before the House of Lords Constitutional Committee, Professor Richard Susskind observed that people should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake. He stated that lawyers from around the world reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom. The difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.”

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

[11] For a discussion of the nature of the confrontation right and the issues of presence see David Harvey Collisios in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) p, 213 – 214. I argue that our view of the “confrontation right” is based on faulty premises about its historical background. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand the presence of an accused and witnesses is statutorily enshrined both in the New Zealand Bill of Rights Act 1990 (s. 25(e) )and in the Evidence Act 2006.(s. 83(1)).

[12] Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 and Ian Lambie and Olivia Hyland “I am more than a piece of paper” [2019] NZLJ 297.

[13] Andrew Langdon Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020)

[14] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020

[15] A proposition put by Andrew Langdon QC in his Inaugural Address

[16] See in particular Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith   ”Juror Assessment of Veracity, Deception, and Credibility,” (2002) 4 Communication LR 45 http://commlawreview.org/Archives/v4i1/Juror%20Assessment%20of%20Veracity.pdf (last accessed 18  August 2014) See also David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2019) Chapter 8 p. 211 et seq

[17] [1765] EWHC KB J98

[18] David Nelken ‘Using the Concept of Legal Culture’, (2004) Australian Journal of Legal Philosophy 29: I-26

[19] F Lederer “The Courtroom as a Stop on the Information Superhighway” (1997) 4 Aust Jnl L Reform 71.

[20] The smaller and more routine legal disputes were conducted in the manorial courts or before Justices of the Peace. Michael Dalton’s The Countrey Justice (Adam Islip for the Stationers, London,1614) was a handbook for the standard procedures that Dalton saw as critical to the proper running of such Courts.

[21] The Court of Star Chamber was a Court that did much of its business from written material rather than emphasizing the oral processes that were a feature of the Royal Courts, but Star Chamber met its demise in 1642 and the Royal Courts assumed the dominant position still with their focus primarily on oral argument.

[22] For a discussion of the impact of the printing press on law and legal culture see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014)

[23] For a very detailed study of the management of image by the Tudors and Stuarts see Kevin Sharpe Selling the Tudor Monarchy (Yale University Press, New Haven 2009) Image Wars: Promoting Kings and Commonwealths in England 1603 – 1660 (Yale University Press, New Haven 2010) and Rebranding Rule: The Restoration and Revolution Monarchy 1660 – 1714 (Yale University Press, New Haven 2013).

[24] More frequently seen in representations after the introduction of the printing press.

[25] For a detailed discussion of the iconography and representations of justice in architecture see Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) Their principal thesis is that ‘the forms in which governments represent themselves provide windows into their aspirations. For further reading see David DesBaillets “Representing Canadian Justice: legal iconography and symbolism in the Supreme Court of Canada” (2018) 14 International Jnl of Law in Context 132 – 156 available online at https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/representing-canadian-justice-legal-iconography-and-symbolism-at-the-supreme-court-of-canada/75886182BB2B238C0E79B8C61861A819/core-reader (last accessed 6 June 2020)

[26] The design of the New Zealand Supreme Court Building is imposing and architecturally unique, especially in its design of the Courtroom but consciously adopts motifs and styles reflecting the multi-cultural community of New Zealand. Nevertheless the motif of the pillars as the supporters of the structure of justice, together with a more localized type of entablature rather than a traditional or classical one are present in the New Zealand Supreme Court building.

[27] Turkuler Israel “Review: Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms” (2013) 12 Contemporary Political Theory p. e.10 – e.13

[28] The use of powerpoint or presentation software is an example of innovation in advocacy, although one that was initially contentious – see R v Haanstra HC Wellington T1155/00, 16 November 2000; R v D CA80/04 8 December 2004; R v Harriman HC Auckland CRI-2005-004-14921, 15 December 2006; R v Tukuafu [2003] 1 NZLR 659 (CA).

The use of electronic bundles is another innovation although the protocols require an approach that is imitative of the hardcopy Eastlight folders. See Senior Courts Civil Electronic Document Protocol 2019 https://www.courtsofnz.govt.nz/assets/going-to-court/practice-directions/practice-notes/all-benches/scced_0.pdf (last accessed 14 June 2020).

[29] Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) p. 339.

[30] Andrew Langdon QC Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020

[31] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 208.

[32] For a full discussion see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014) and for the qualities of the printing press Elizabeth Eisenstein The Printing Press as an Agent of Change (1 Vol) (Cambridge university Press, Cambridge 1980) esp at chapter 2 page 43 et seq

[33] See John Langbein The Origins of Adversary Criminal Trial (Oxford University Press, Oxford 2003)

[34] The argument is developed in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at Chapter 2. I identify a taxonomy of 13 qualities which dramatically, paradigmatically, differ digital technologies from those that have gone before. The taxonomy for these qualities suggests three major classifications based upon the nature of the qualities. These classifications I have described as “Environmental”, “Technical” and “User Associated.”

The environmental qualities relate to change and the drivers for change. They are continuing disruptive change and permissionless innovation. The technical qualities are underlying aspects of the way in which Digital Communications Technologies, and especially the Internet, work. They are delineaisation of information, information persistence or endurance, dynamic information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence. The final set of the three categories of qualities – user associated qualities – involve the way in which digital technologies provide opportunities for users to locate, acquire and process information The first three qualities, which I have grouped together because they represent a continuum, perhaps are indicative of the nature of a cross-over between what could be considered technical qualities – something inherent in the technology – and qualities that are primarily user focussed. The final quality relates to the way in which the Digital Paradigm enables information creation in a multi-authorial sense. They are the availability, searchability and retrievability of information, participation and interactivity

[35] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf ; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf   (last accessed 23 February 2012). 

For a brief introduction to the development of Prensky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012).

[36] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover Paratexts (1992) 44 Stanford Law Review 509.

[37] Section 8 of the Courts (Remote Participation) Act 2010 mandates the use of AVL in criminal procedural matters where that technology is available and the participant is in custody unless a Judge or Registrar determines otherwise. However, protocols issued by the various Heads of Bench have mandated a return to the “in person” model and indeed run counter to the position mandated by statute.

[38] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford 2019) p. 182 et seq.

Court Hearings and Covid-19 – Another View

Many of the concerns about the use of technology in Courts raised by Dr. James Farmer QC in his blogpost “Court Hearings and Covid-19” have been ventilated before. Rather like the Chief Justice his starting point is that technology compromises certain fundamentals that underpin our adversarial system.

The major premise of the post is that the use of virtual hearing technology – even if it were reliable which he claims it is not – is inherently unable to provide a top quality judicial process in certain categories of cases. Mr Farmer refers especially to lengthy complex trials, Court of Appeal Hearings and Supreme Court hearings.

His post notes that the Court of Appeal and Supreme Court issued a Remote Hearings Protocol providing for virtual hearings (Farmer uses the adjective euphemistically but the reason for that eludes me) Remote (or virtual) hearings are provided for during the various Alert levels and I recognise that this type of hearing will not be appropriate in all circumstances.

What critics fail to recognize when the issue of online courts or remote\virtual hearings is raised is that the proposals do not represent a shift away from what could be called the normal adversarial type of hearing. Rather, virtual or remote hearings provide another means by which justice may be delivered.

From the outset I agree, as I have said, that virtual or remote hearings may not be ideal for every type of case. But there are some cases for which they will be ideal. It is completely unnecessary for counsel to trail across town from their various offices to personally attend a pre-trial conference hearing. These have been done via teleconference for many years as Dr Farmer observes.

That the technology exists to allow a video appearance may enhance the process and allow for an additional nuance that is absence in a voice-only communication. That some attempts to engage in video conferences have encountered technological difficulties is to be expected in the early use of technology.

In my view the fact that Covid-19 has forced the Courts to utilize video technology more extensively beyond the use of the dedicated AVL system is an indictment upon lack of planning and innovation. These tools have been around for a while. They should have been deployed, used and had the rough spots smoothed long ere this.

The importance of process still remains in the virtual hearing. Although the participants may not be in the same physical or geographical location the hearing itself is centralized in that all parties can see one another and the exchanges that would take place in the same location still take place in the virtual space.

Openness is straight forward. Cases can be live streamed as was the case with the 9^th Circuit Court of Appeals argument in State of Washington v Trump. In that case there was no courtroom. The judges were remotely located as were counsel. The audio of the argument was livestreamed. There were over 130,000 in the online audience – a few more than could sit in the courtroom in San Francisco. Similarly in New Zealand the arguments in the High Court in Ortmann v US – the Dotcom extradition case – were livestreamed on YouTube subject to certain directions from the Court. I think that we can safely say that there are technological solutions to preserve the openness of virtual hearings.

The importance of the “day in court” is present in the virtual hearing. Is it really necessary for all the parties and their witnesses to travel from their various geographical locations to a large, imposing and predominantly symbolic building, wait around for an ill-defined period of time to be heard.

The words “day in court” have become part of the popular lexicon but in fact represent another concept entirely and that is the wish, desire and indeed right of litigants to be HEARD. The importance of the day in court is the Court hearing – it is not called a hearing for nothing – and the words “Court hearing” in my view more correctly exemplify what the process is all about rather than the emotive use of the term “day in court”.

A further reality of the Court hearing is that what takes place is not an elegant forensic intellectual exercise, although it may be for some, but an process of information exchange and evaluation. In the final analysis that is what happens when client communications instructions, when a lawyer looks up a statute or a case, when that same lawyer provides advice to the client, when a lawyer files pleadings or submissions, adduces evidence from a witness or makes an argument in Court to the point when a Judge delivers a decision based on the information communicated.

In the past the nature of that process has been determined by the available technology. Pleadings were originally prepared by scribes but later were provided in typescript when the technology of the typewriter became available. Law reports did not exist until Plowden’s Commentaries in 1571 and before then the “reports” were handwritten notes circulated among coteries of lawyers. It took some time for reliable reports to be made available per medium the technology of the printing press. The photocopier has had an impact making it possible for multiple copies of papers to be provided along with voluminous attachments and cases, often to the dismay of the Judge. The mobile phone means that lawyers are available to clients 24/7 rather than Monday to Friday, 9 -5.

Yet despite the advances in communications technologies made available by developments in the Digital Paradigm, lawyers and judges seem unwilling to adopt and adapt to the new communications environment in the Court process and use new and innovative ways of doing what the job is all about – communicating information.

But in saying this I return to my major premise – not all cases are going to be amenable to virtual hearing tools.

There are some more fundamental issues that need to be considered – perhaps a little more significant than the image of the Court as a community centre or the idea that the only way we can achieve justice is by the physical presence of everyone in the same place at the same time.

The first – which has been highlighted by the Covid-19 crisis – is that of health, safety and associated with that, convenience.

Court houses are inherently unhealthy places to be – this before Covid-19. Large groups of people, many of whom are not able to afford medical care and may have communicable complaints or illnesses, are gathered together in waiting areas or courtrooms, counsel who must interview clients or take instructions in close quarters, jurors who are seated close to one another for extended periods of time – although I concede that jury trials of necessity must be in-person at this stage.

The convenience aspect, especially for busy lawyers in the District Court, has been exemplified by the use of remote hearings for administrative or routine matters which might earlier have required an appearance at several courts in, say, the Auckland region, but which can be dealt with expeditiously by a remote hearing where counsel does not have to leave the office. All “appearances” have been expeditiously completed in a morning – no travel involved.

A second aspect of the use of technology in Courts, highlighted by the Covid-19 crisis but not referred to by Dr Farmer, has been the development of ad hoc electronic filing solutions. I have referred to this in an earlier post.

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

As I have said, ad hoc e-filing solutions involving the use of attachments to emails, and, as proposed by the Defence Lawyers Association, the use of a dedicated email e-filing address, have been developed.

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offered in my previous post and which I repeat here is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

Caselines involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper or PDF files on USB sticks that accompany Court proceedings. Caselines enhances the gathering and production of evidence during the course of a hearing.

It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

A third aspect of virtual or online hearings is that of relevance to users. I have written on this aspect in an earlier post, but what I said then bears repeating.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19 and its aftermath which will be with us for some considerable time..

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot” or remaining wedded to archaic business models because they are what have been used is the past and fulfil some imagined level of near perfection.

We need to ensure:

a. Public confidence in the system; and

b. Associated with that a recognition that Courts are responding effectively to the crisis; and

c. That the solutions offered are relevant to present and future circumstances.

I shall expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants. 

Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants.

It may be considered laughable or at best quaint that the court should be a place where the requirement to be physically present for the disposal of court business, particularly when there are other communications systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant.

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts were closed to members of the public whose presence is not required for the business of the Court.

Covid 19 – whatever the Alert level – presents us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us in part to meet that challenge.

The tools and means are available. They can be added to and become part of the processes that are important in the justice system.

Do Social Network Providers Require (Further?) Regulation – A Commentary

This is a review and commentary of the Sir Henry Brooke Student Essay Prize winning essay for 2019. The title of the essay topic was “Do Social Network Providers Require (Further?) Regulation

Sir Henry Brooke was a Court of Appeal judge in England. He became a tireless campaigner during retirement on issues including access to justice. His post-judicial renown owed much to his enthusiastic adoption of digital technology although he spear-headed early initiatives for technology in courts and led and was first Chair of the British and Irish Legal Information Institute (BAILII) – a website that provides access to English and Irish case and statute law. Upon his retirement many came to know of him through his blog and tweets. He drafted significant sections of the Bach Commission’s final report on access to justice, and also acted as patron to a number of justice organisations including the Public Law Project, Harrow Law Centre and Prisoners Abroad.

The SCL (Society for Computers and Law) Sir Henry Brooke Student Essay Prize honours his legacy.  For 2019 the designated essay question this year was 2000-2,500 words on the prompt “Do social network providers require (further?) regulation?” the winner was Robert Lewis from the University of Law. His essay considers some of the regulatory responses to social media. His starting point is the events of 15 March 2019 in Christchurch.

The first point that he makes is that

“(h)orrors such as Christchurch should be treated cautiously: they often lead to thoughtless or reflexive responses on the part of the public and politicians alike.”

One of his concerns is the possibility of regulation by outrage, given the apparent lack of accountability of social networking platforms.

He then goes on to examine some examples of legislative and legal responses following 15 March and demonstrates the problem with reflexive responses. He starts with the classification of the live stream footage and the manifesto posted by the alleged shooter. He referred to a warning by the Department of Internal Affairs that those in possession of the material should delete it.

He then examines some of the deeper ramifications of the decision. Classification instantly rendered any New Zealander with the video still in his computer’s memory cache, or in any of his social media streams, knowingly or not, potentially guilty of a criminal offence under s.131 of Films Videos and Publications Classification Act 1993. He comments

“Viewing extracts of  the footage shown on such websites was now illegal in New Zealand, as was the failure to have adequately wiped your hard drive having viewed the footage prior to its classification. A significant proportion of the country’s population was, in effect, presented with a choice: collective self-censorship or criminality.”

Whilst he concedes that the decision may have been an example of civic responsibility, in his opinion it did not make good law. Mr. Lewis points out that the legislation was enacted in 1993 just as the Internet was going commercial. His view is that the law targets film producers, publishers and commercial distributors, pointing out that

“these corporate entities have largely been supplanted by the social network providers who enjoy broad exemptions from the law, which has instead been inverted to criminalise “end users”, namely the public which the law once served to protect.”

He also made observations about the maximum penalties which are minimal against the revenue generated by social media platforms.

He then turned his attention to the case of the arrest of a 22 year old man charged with sharing the objectionable video online. He commented that

“that faced with mass public illegality, and a global corporation with minimal liability, New Zealand authorities may have sought to make an example of a single individual. Again, this cannot be good law.”

Mr. Lewis uses this as a springboard for a discussion about the “safe harbor” provisions of the Communications Decency Act (US) and EU Directive 2000/31/EC, which created the “safe harbour” published or distributed.

Mr Lewis gives a telling example of some of the difficulties encountered by the actions of social media platforms in releasing state secrets and the use of that released information as evidence in unrelated cases. He observes

“The regulatory void occupied by social network providers neatly mirrors another black hole in Britain’s legal system: that of anti-terrorism and state security. The social network providers can be understood as part of the state security apparatus, enjoying similar privileges, and shrouded in the same secrecy. The scale of their complicity in data interception and collection is unknown, as is the scale and level of the online surveillance this apparatus currently performs. The courts have declared its methods unlawful on more than one occasion and may well do so again.”

A theme that becomes clear from his subsequent discussion is that the current situation with apparently unregulated social media networks is evidence of a collision between the applicability of the law designed for a pre-digital environment and the challenges to the expectations of the applicability of the law in the digital paradigm. For example, he observes that

“The newspapers bear legal responsibility for their content. British television broadcasters are even under a duty of impartiality and accuracy. In contrast, social network providers are under no such obligations. The recent US Presidential election illustrates how invidious this is.”

He also takes a tilt at those who describe the Internet as “the Wild West”.

“This is an unfortunate phrase. The “wild west” was lawless: the lands of the American west, prior to their legal annexation by the United States, were without legal systems, and any pre-annexation approximation of one was illegal in and of itself. In contrast, the social network providers reside in highly developed, and highly regulated, economies where they are exempted from certain legal responsibilities. These providers have achieved enormous concentrations of capital and political influence for precisely this reason.”

He concludes with the observation that unlawful behaviour arises from a failure to apply the law as it exists and ends with a challenge:

“ In England, this application – of a millennium-old common law tradition to a modern internet phenomenon such as the social networks – is the true task of the technology lawyer. The alternative is the status quo, a situation where the online publishing industry has convinced lawmakers “that its capacity to distribute harmful material is so vast that it cannot be held responsible for the consequences of its own business model.””

The problem that I have with this essay is that it suggests a number of difficulties but, apart from suggesting that the solution lies in the hands of technology lawyers, no coherent solution is suggested. It cites examples of outdated laws, of the difficulty of retroactive solutions and the mixed blessings and problems accompanying social media platforms. The question really is whether or not the benefits outweigh the disadvantages that these new communications platforms provide. There are a number of factors which should be considered.

First, we must recognize that in essence social media platforms enhance and enable communication and the free exchange of ideas – albeit that they may be banal, maudlin or trivial – which is a value of the democratic tradition.

Secondly, we must recognize and should not resent the fact that social media platforms are able to monetise the mere presence of users of the service. This seems to be done in a number or what may appear to be arcane ways, but they reflect the basic concept of what Robert A. Heinlein called TANSTAFL – there ain’t no such thing as a free lunch. Users should not expect service provided by others to be absolutely free.

Thirdly, we must put aside doctrinaire criticisms of social media platforms as overwhelming big businesses that have global reach. Doing business on the Internet per se involves being in a business with global reach. The Internet extends beyond our traditional Westphalian concepts of borders, sovereignty and jurisdiction.

Fourthly, we must recognize that the Digital Paradigm by its very nature has within it various aspects – I have referred to them elsewhere as properties – that challenge and contradict many of our earlier pre-digital expectations of information and services. In this respect many of our rules which have a basis in underlying qualities of earlier paradigms and the values attaching to them are not fit for purpose. But does this mean that we adapt those rules to the new paradigm and import the values (possibly no longer relevant) underpinning them or should we start all over with a blank slate?

Fifthly, we must recognize that two of the realities in digital communications have been permissionless innovation – a concept that allows a developer to bolt an application on to the backbone – and associated with that innovation, continuous disruptive change.

These are two of the properties I have mentioned above. What we must understand is that if we start to interfere with say permissionless innovation and tie the Internet up with red tape, we may be if not destroying but seriously inhibiting the further development of this communications medium. This solution would, of course, be attractive to totalitarian regimes that do not share democratic values such as freedom of expression

Sixthly, we have to accept that disruptive change in communications methods, behaviours and values is a reality. Although it may be comfortable to yearn for a nostalgic but non-existent pre digital Golden Age, by the time such yearning becomes expressed it is already too late. If we drive focused upon the rear view mirror we are not going to recognize the changes on the road ahead. Thus, the reality of modern communications is that ideas to which we may not have been exposed by monolithic mainstream media are now being made available. Extreme views, which may in another paradigm, have been expressed within a small coterie, are now accessible to all who wish to read or see them. This may be an uncomfortable outcome for many but it does not mean that these views have only just begun to be expressed. They have been around for some time. It is just that the property of exponential dissemination means that these views are now available. And because of the nature of the Internet, many of these views may not in any event be available to all or even searchable, located, as many of them are, away from the gaze of search engines on the Dark Web.

Seventhly, it is only once we understand not only the superficial content layer but the deeper implications of the digital paradigm – McLuhan expressed it as “the medium is the message” can we begin to develop any regulatory strategies that we need to develop.

Eighthly, in developing regulatory strategies we must ask ourselves whether they are NECESSARY. What evil are the policies meant to address. As I have suggested above, the fact that a few social media and digital platforms are multi-national organisations with revenue streams that are greater than the GDP of a small country is not a sufficient basis for regulation per se – unless the regulating authority wishes to maintain its particular power base. But then, who is to say that Westphalian sovereignty has not had its day. Furthermore, it is my clear view that any regulatory activity must be the minimum that is required to address the particular evil. And care must be taken to avoid the “unintended consequences” to which Mr Lewis has referred and some of which I have mentioned above.

Finally, we are faced with an almost insoluble problem when it comes to regulation in the Digital Paradigm. It is this. The legislative and regulatory process is slow although the changes to New Zealand’s firearms legislation post 15 March could be said to have been done with unusual haste. The effect has been that the actions of one person have resulted in relieving a large percentage of the population of their lawfully acquired property. Normally the pace of legislative or regulatory change normally is slow, deliberative and time consuming.

On the other hand, change in the digital paradigm is extremely fast. For example, when I started my PhD thesis in 2004 I contemplated doing something about digital technologies. As it happens I didn’t and looked at the printing press instead. But by the time my PhD was conferred, social media happened. And now legislators are looking at social media as if it was new but by Internet standards it is a mature player. The next big thing is already happening and by the time we have finally worked out what we are going to do about social media, artificial intelligence will be demanding attention. And by the time legislators get their heads around THAT technology in all its multiple permutations, some thing else – perhaps quantum computing – will be with us.

I am not saying therefore that regulating social media should be put in the “too hard” basket but that what regulation there is going to be must be focused, targeted, necessary, limited to a particular evil and done with a full understanding of the implications of the proposed regulatory structures.

Artificial Intelligence and Legal Practice

I was invited to deliver a paper on the impact of artificial intelligence on lawyers and legal practice. There has been a considerable amount of concern that automated systems are going to replace lawyers and that sentences will be imposed by computer. I don’t see that as a future.

Along with Richard Susskind I see a more nuanced outcome that will involve the automation of repetitive tasks and a redeployment of lawyers into other areas of legal activity.

The Paper was delivered to the NZ Law 25th Anniversary Conference in Auckland on 29 September 2017. A copy of the paper and the presentation follow.

View this document on Scribd

 

 

 

CTC 2017 – The Online Court

This year I was invited to present a paper at the National Center for State Courts biannual conference – Courts Technology Conference 2017. I was asked to present a paper on the development of the Online Court project in England and some of the thinking behind that project.

I have had an interest in this project since Professor Richard Susskind’s report on February 2015 and have followed the reports issued by Lord Briggs. There are two things of particular significance.

The first is that the project demonstrates the disruptive effect of technology and the way in which the deployment of technological solutions may result in quite significant changes in process without destroying or compromising the underlying  philosophies of a just system of dispute resolution provided by the State.

The second thing is the types of technology that may be deployed to make the online court work. The paper I prepared for the Conference looked at these two aspects of the matter along with a consideration of some of the positives and potential negatives of the project. Most of the negatives are in fact answerable.

The technological solutions that I considered were conceptual only and I wish I could have attended the July Online Courts hackathon in London. It is highly likely that the technical section of my paper would have had a completely different approach.

Here is a copy of the paper:

View this document on Scribd

The powerpoint slides that were a part of the presentation follow

The session was live streamed and recorded and the video follows

I hope that this material is useful.

 

Lawyers and Judges in the Online Court

This post is very much a random “on-the-fly” collection of thoughts about the way in which lawyers and Judges may have to change their working methods on the Online Solutions Court environment. It does not offer a nuanced fully developed systematic set of proposals or thoughts but rather an informal stroll through possible outcomes. It could form the basis for a more formalised study at a later time.

 

The technologically driven transformation of the civil process proposed by Professor Richard Susskind and Lord Justice Sir Michael Briggs are going to require some re-alignment of ways of working by both lawyers and judges.

The English Online Solutions Court proposals have developed in part to answer problems experienced by citizens who may have a legal claim which they wish to have addressed but for who the costs and complexity of the legal and court process present a barrier.

The Susskind\Briggs proposals envision the provision of processes which will allow citizens to directly access information about their potential claims, receive machine based recommendations as to the steps that may or may not be available and offer some suggestions as to probability of success or otherwise. From there the citizen may commence proceedings using online processes and step through the evaluation, dispute containment and hearing tiers as set out in the discussion documents that have developed the thinking behind the online solutions court.

Although the prospective litigant does not have to seek legal advice, the involvement of lawyers in not excluded from the process.

Perhaps the first major cultural shift will be to change from the adversarial stance that characterises litigation to a more problem solving focus. The emphasis of the Online Solutions Court is to find a solution to a problem and the larger part of the resource and process is dedicated to that end. The hearing before a decision maker, where the parties delegate the outcome to a Judge is the least acceptable outcome. Although the Fisher and Ury “Getting to Yes” model is well embedded in problem solving thinking, this type of approach is going to have to be one of the major shifts in emphasis for lawyers.

The Online Solutions Court models as proposed by Susskind/Briggs shifts the emphasis from lawyer control of the process of litigation to client or litigant control. The model also envisages a complete change of focus for the process, the objective being a solution or resolution rather than getting the case before a decision maker (Judge) to determine the matter. Thus if and when lawyers are involved in a matter in the Online Solutions Court they will not drive or direct what is happening. This relinquishment of control (subject to client’s instructions) means that the dispute is not lawyer driven. Letting go of that mind set will be significant.

Rather the involvement of the lawyer may well be on an “as needed” basis. For the first phase – case evaluation – the lawyer’s role will be minimal. Online evaluation, predictive analytics and other AI tool will provide that initial “advice” and potential outcomes. A lawyer may be asked for a second opinion, but as the term suggests, lawyer involvement will be secondary to the litigant controlled matter.

In this respect, given that the litigant interaction with the OSC will have been through an online process, any lawyer involvement may be accessed by the litigant\client remotely as well. This model of ”on demand” lawyering is not new. Models exist in BLP’s Lawyers on Demand (LOD) Evershed’s Agile and Allen & Overy’s Peerpoint. In New Zealand the McCarthy service offered by Minter Ellison Rudd Watts is another example.

Although the examples given are offerings by large law firms, the agile lawyer in the OSC environment should be able to provide a form of advice service for OSC litigants, recognising that the nature of the query and the scope of the advice may be quite restricted and will not be part of an ongoing matter. Thus the role of the lawyer may well be segmented in the particular proceeding, reflecting some of Susskind’s predictions in Tomorrow’s Lawyers and The Future of the Professions.

In addition to providing the service online the agile OSC lawyer may consider deploying a number of communications platforms for providing advice or information. The 140 character limitation of Twitter may preclude its use, but the use of chatbots for routine enquiries or other forms of voice recognition software may be deployed as well as virtual face to face systems such as Skype or online chat services – encrypted of course.

So it is clear that the lawyer in the OSC space is going to have to be tech savvy and attuned to the cultural shift that will be required. The OSC lawyer will need to be able to shift from the office desk model of advice to the mobile smartphone always on 24\7 model perhaps with an integrated application for the calculation and online bank transfer payment of the modest fee that the commoditised advice will justify.

The Susskind\Briggs model is aimed towards minimal judicial involvement although that said it is inevitable that Judges will be involved as disputes will reach them. One of the ways in which decisions will be made is “on the papers” although the papers will be digital. Judges will have to become more acclimatised to taking text and illustrative material from a screen. The OSC model would discourage the urge to print the material out and deal with it in the tradition “on the papers” way. One advantage with the digital on screen process is that the snagging of a finger or thumb on an errant staple will be avoided. But deciding matters on the basis or written or file based information is quite common for Judges.

Adaptation to an online hearing will require a shift on the part of lawyers and judges. The current paper based model has been underpinned by the oral hearing which requires all participants to be in the same place at the same time. Place doesn’t matter with a hearing in the OSC. The big difference will be getting used to communicating via Skype or some other form of audio-visual link process. Susskind suggested that online hearings could be conducted by teleconference but my view is that there is little technological difference if an AVL solution were deployed and would give a “human” element albeit via a screen rather than a disembodied voice across a conferenced  phone connection.

However it is this absence of “physicality” that is likely to require the biggest cultural and behavioural shift on the part of judges and lawyers. My own experience is that there is an initial phase of apprehensiveness in using AVL but as one uses it more frequently one becomes used to it so that ultimately it becomes routine. One is able to make the necessary adjustments of visual focus and oral clarity and it isn’t long before what appears to be the odd scenario of a person sitting in a room talking to a computer screen vanishes as the desire to address and deal with the problem in hand comes to the fore.

These are just a few brief thoughts about some of the skills and cultural changes that may be required by lawyers and Judges in the OSC space. The comments and observations by Richard Susskind and Sir Michael Briggs in their various reports provide some signposts for where lawyers may need to adapt. What is important to remember is that although the OSC provides a novel way of addressing litigation, the objective – an accessible, user friendly, litigant controlled system that will provide a resolution based on the law – fundamentally remains the same.

Artificial Intelligence and Law(s)

In Philip K. Dick’s book “Do Androids Dream of Electric Sheep” – made into the brilliant movie “Bladerunner” directed by Ridley Scott – the genetically engineered replicants, indistinguishable from human beings, were banned from Earth and set to do work on off-world colonies. There was a fear of the threat that these “manufactured” beings could pose to humans.

Isaac Asimov’s extraordinarily successful “Robot” series of short stories and books had a similar premise –  that intelligent robots would pose a threat to humans. In “Androids” the way that the replicants were regulated was that they were shipped off-world and if they returned to Earth they were hunted down and “retired”. Asimov’s regulatory solution was a little more nuanced. Robots, upon the creation of their positronic brains, were programmed with the Three Laws of Robotics. These were as follows:

1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

These three laws were the foundation of all the tensions that arose in Asimov’s stories. How were the Three Laws to be applied? What happens when there is a conflict? Which rule prevails?

The stories are classified as science fiction. I prefer to treat them as examples of statutory interpretation. But underpinning the Three Laws and the reason for them was what Asimov called “The Frankenstein Complex” – a term he coined for fear of mechanical men or created beings that resemble human beings. And his answer to that fear and how it could be mitigated was the Three Laws.

A similar call recently went out about how we should deal with Artificial Intelligence. A report entitled “Determining Our Future: Artificial Intelligence”  written collaboratively by people from the Institute of Directors and the law firm Chapman Tripp, whilst pointing out the not insubstantial benefits that artificial intelligence or “smart systems” may provide, has a significant undertone of concern.

The report calls for the Government to establish a high-level working group on AI which should consider

“the potential impacts of AI on New Zealand, identifying major areas of opportunity and concern, and making recommendations about how New Zealand should prepare for AI-driven change.”

The writers consider AI is an extraordinary challenge for our future and the establishment of a high level working group is a critical first step to help New Zealand rise to that challenge. It seems to be the New Zealand way to look to the Government to solve everything, problematical or otherwise which says interesting things about self-reliance.

The report is an interesting one. It acknowledges the first real problem which is how do we define AI. What exactly does it encompass? Is it the mimicking of human cognitive functions like learning or problem solving. Or is it making machines intelligent – intelligence being the quality that enables an entity to function appropriately and with foresight in its environment.

Even although there seems to be an inability to settle upon a definition a more fruitful part of the examination is in the way in which “smart” computing systems are used in a range of industries and there is the observation that there has been a significant increase in investment in such “smart” systems by a number of players.

The disruptive impact of AI is then considered. This is not new. One of the realities of the Digital Paradigm is continuing disruptive change. There is little time to catch breath between getting used to one new thing and having to confront and deal with a new new thing. Disruption has been taking place from before the Digital Paradigm and indeed back to the First Industrial Revolution.

There is a recognition that we need to prepare for the disruptive effects of any new technology, but what the report fails to consider is the way in which disruptive technologies may ultimately be transformative. There is some speculation that after an initial period of disruption to established skills and industries, AI may lead to greater employment as new work becomes available in areas that have not been automated.

The sense of gloom begins to increase as the report moves to consider legal and policy issues. Although the use of AI in the legal or court process – I prefer to use the term expert legal systems – is not discussed, issues such as whether AI systems should be recognised as persons are mentioned. In this time of Assisted Birth Technologies and other than purely natural creation of life, it is not an easy question to answer. “Created by a human” doesn’t cut it because that is the way that the race has propagated itself for millennia. “Artificially created by a human” may encompass artificial insemination and confine people who are otherwise humans to some limbo status as a result.  But really what are we talking about. We are talking about MACHINE intelligence that is driven by algorithms. I don’t think we are talking about organic systems – at least not yet.

But it is the last question in that section that gives me cause for pause. Are New Zealand’s regulatory and legislative processes adaptive enough to respond to and encourage innovations in AI? What exactly is meant by that? Should we have regulatory systems in place to control AI or to develop it further? That has to be read within the context of the introductory paragraph

“AI presents substantial legal and regulatory challenges. These challenges include problems with controlling and foreseeing the actions of autonomous systems.”

Then the report raises the “Frankenstein Complex.” The introductory paragraph reads as follows:

“Leaders in many fields have voiced concerns over safety and the risk of losing control of AI systems. Initially the subject of science fiction (think Skynet in the Terminator movies), these concerns are now tangible in certain types of safety-critical AI applications – such as vehicles and weapons platforms – where it may be necessary to retain some form of human control.”

The report goes on to state:

Similar concerns exist in relation to potential threats posed by self-improving AI systems. Elon Musk, in a 2014 interview at MIT, famously called AI “our greatest existential threat”.
Professor Stephen Hawking, in a 2014 interview with BBC said that “humans, limited by slow biological evolution, couldn’t compete and would be superseded by AI”.

Stanford’s One-Hundred Year Study of AI notes that

“we could one day lose control of AI systems via the rise of superintelligences that do not act in accordance with human wishes – and that such powerful systems would threaten humanity”.

Google’s DeepMind lab has developed an AI ‘off-switch’, while others are developing a principles-based framework to address security.

Then the question is asked

“What controls and limitations should be placed on AI technology.”

I think the answer would have to be as few as possible consistent with human safety that allow for innovation and continued development of AI. It must be disturbing to see such eminent persons such as Hawking and Musk expressing concerns about the future of AI. The answer to the machine lies in the machine as Google has demonstrated – turn it off if need be.

The report closes with the following observation.

The potential economic and social opportunities from AI technologies are immense. The public and private sectors must move promptly and together to ensure we are prepared to reap the benefits, and address the risks of AI.

And regulation is the answer? I think not.

Artificial Intelligence as a Tool for Lawyers

My particular interest in AI has been in its application to the law so let’s have a brief look at that issue. Viewed dispassionately the proposals are not “Orwellian” nor do they suggest the elevation of “Terminator J” to the Bench. It may also serve to put a different perspective on AI and the future.

In a recent article, Lex Machina’s Chief Data Scientist observed that data analytics refined information to match specific situations.

“Picture this: You’re building an antitrust case in Central California and want to get an idea of potential outcomes based on everything from judges, to districts, to decisions and length of litigation. In days of law past, coming up with an answer might involve walking down the hall and asking a partner or two about their experiences in such matters, then begin writing a budget around a presumed time frame. “

Howard says that analytics change the stakes. “Not only are you getting a more precise answer,” he attests, “but you’re getting an answer that is based on more relevant data.”

Putting the matter very simplistically legal information either in the form of statutes or case law is data which has meaning when properly analysed or interpreted. Apart from the difficulties in location of such data, the analytical process is done by lawyers or other trained professionals.

The “Law as Data” approach uses data analysis and analytics which match fact situations with existing legal rules.

Already a form of data analysis or AI variant is available in the form of databases such as LexisNexis, Westlaw, NZLii, Austlii or Bailii. Lexis and Westlaw have applied natural language processing (NLP) techniques to legal research for 10-plus years. The core NLP algorithms were all published in academic journals long ago and are readily available. The hard (very hard) work is practical implementation. Legal research innovators like Fastcase and RavelLaw have done that hard work, and added visualizations to improve the utility of results.

Using LexisNexis or Westlaw, the usual process involves the construction of a search which, depending upon the parameters used will return a limited or extensive dataset. It is at that point that human analysis takes over.

What if the entire corpus of legal information is reduced to a machine readable dataset. This would be a form of Big Data with a vengeance, but it is a necessary starting point. The issue then is to:

1. Reduce the dataset to information that is relevant and manageable
2. Deploy tools that would measure the returned results against the facts or a particular case to predict a likely outcome.

Part (a) is relatively straight forward. There are a number of methodologies and software tools that are deployed in the e-Discovery space that perform this function. Technology-assisted review (TAR, or predictive coding) uses natural language and machine learning techniques against the gigantic data sets of e-discovery. TAR has been proven to be faster, better, cheaper and much more consistent than human-powered review (HPR). It is assisted review, in two senses. First, the technology needs to be assisted; it needs to be trained by senior lawyers very knowledgeable about the case. Second, the lawyers are assisted by the technology, and the careful statistical thinking that must be done to use it wisely. Thus, lawyers are not replaced, though they will be fewer in number. TAR is the success story of machine learning in the law. It would be even bigger but for the slow pace of adoption by both lawyers and their clients.

Part (b) would require the development of the necessary algorithms that could undertake the comparative and predictive analysis, together with a form of probability analysis to generate an outcome that would be useful and informative. There are already variants at work now in the field of what is known as Outcome Prediction utilising cognitive technologies.

There are a number of examples of legal analytics tools. Lex Machina, having developed a set of intellectual property (IP) case data, uses data mining and predictive analytics techniques to forecast outcomes of IP litigation. Recently, it has extended the range of data it is mining to include court dockets, enabling new forms of insight and prediction. Now they have moved into multi-District anti-trust litigation.

LexPredict developed systems to predict the outcome of Supreme Court cases, at accuracy levels which challenge experienced Supreme Court practitioners.

Premonition uses data mining, analytics and other AI techniques “to expose, for the first time ever, which lawyers win the most before which Judge.”

These proposals, of course, immediately raises issues of whether or not we are approaching the situation where we have decision by machine.

As I envisage the deployment of AI systems, the analytical process would be seen as a part of the triaging or Early Case Assessment process in the Online Court Model, rather than as part of the decision making process. The advantages of the process are in the manner in which the information is reduced to a relevant dataset performed automatically and faster than could be achieved by human means. Within the context of the Online Court process it could be seen as facilitative rather than determinative. If the case reached the decision making process it would, of course, be open to a Judge to consider utilising the “Law as Data” approach with, of course, the ultimate sign-off. The Judge would find the relevant facts. The machine would process the facts against the existing database that is the law and present the Judge with a number of possible options with supporting material. In that way the decision would still be a human one, albeit machine assisted.

Conclusion

As we embark down this road let us ensure that we do not over-regulate out of fear. Let us ensure that innovation in this exciting field is not stifled and that it continues to develop. The self-aware, self-correcting, self-protecting Skynet scenario is not a realistic one and, in my view, needs to be put to one side as an obstruction and recognised for what it is – a manifestation of the Frankenstein complex. And perhaps, before we consider whether or not we travel the path suggested in the report we should make sure that the Frankenstein complex is put well behind us.

 

From Theory to Practice – Software Models and Evidence for the Online Court

In the paper below I look at some of the ways in which technology may be applied to proposals for on-line Courts.

The proposals by Richard Susskind the JUSTICE paper and Lord Justice Sir Michael Briggs are based upon the availability of technical solutions to fulfil the promise inherent in the new models for resolving disputes. I emphasise that in using that phrase I envisage, as did Professor Susskind, the dispute resolution model to function within the established Court process rather than as a stand alone alternative to the Court process.

A consideration of the deployment of technology within the Court process first requires a recognition of the way in which technology can reflect or replace current processes. The Online Court proposals that have been put forward suggest significant process change but represent high level strategy. What I consider is a slightly more practical overview of some of the ways in which technology may be deployed. In addition there are issues surrounding the handling of digital evidence which will require consideration.

View this document on Scribd

 

Collisions in the Digital Paradigm II – Recorded Law

 Author’s Note: This post develops further some of the themes that have appeared in earlier posts on this blog. The title reflects a particular post from March of last year which considered the nature of copyright in the digital paradigm. In particular this post develops and expands the analytical model further.

“When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”[1]

Introduction

Marshall McLuhan articulated two aphorisms that aptly encapsulate certain realities about the impact of the media of information communications. “The medium is the message”[2] – perhaps his most famous and yet opaque statement – emphasises the importance of understanding the way in which information is communicated. According to McLuhan, we focus upon the message or the content that a medium delivers whilst ignoring the delivery system and its impact. In most cases our expectation of content delivery is shaped by earlier media. We tend to look at the new delivery systems through a rear view mirror and often will seek for analogies, metaphors or concepts of functional equivalence to explain the new medium that do not truly reflect how it operates and the underlying impact that it might have.

“We become what we behold. We shape our tools and thereafter our tools shape us”[3] is the second aphorism that summarises the impact that new media may have. Having developed the delivery system, we find that our behaviours and activities change. Over time it may be that certain newly developed behaviours become acceptable and thus underlying values that validate those behaviours change. In the case of information delivery tools, our relationships with, expectations and use of information may change.

McLuhan’s first aphorism is that content alone does not cause these modifications. My suggestion is that it is the medium of delivery that governs new information expectations, uses and relationships. How does this happen? One has to properly understand the tool – or in the case of information communication, the medium – to understand the way in which it impacts upon informational behaviours, use and expectations.

In the first part of this paper I shall consider the underlying qualities or properties of new information media. The starting point is to consider the approach of Elizabeth Eisenstein in her study “The Printing Press as an Agent of Change”.[4]  I shall then consider the development of a similar approach to digital communications systems and particularly the Information Technologies of computers and the Internet. It will become clear that this is a complex and at times contradictory process for within the Digital Paradigm there are a number of tensions that result in nuanced conclusions rather than absolutes.

The second part of this paper moves to consider the impact of the Digital Paradigm upon the information matrix that is the Law. I argue that the authoritative basis of the Law lies in the way that the law is communicated, and that many of our assumptions about the certainty of law and the its foundations, particularly of the doctrine of precedent, have been built upon print technology. I suggest that the Digital Paradigm and an understanding of the new media for communicating legal information present some fundamental challenges to our assumptions about law and may well revolutionise established legal institutions and doctrines. In the course of this discussion I challenge the often advanced and convenient escape route that suggests that what the Digital Paradigm offers is merely content in a different delivery system which may be “functionally equivalent” to that which has gone before. I argue that escape route is now closed off in light of the fundamentally different manner by which content is delivered in the Digital Space.

Elizabeth Eisenstein and the Qualities of Print

There are some very sound reasons why it is that print has become an essential part of the authoritativeness of recorded legal information. These reasons may be located in the qualities that are associated with print itself – qualities that go below the initial nature of the content, and that differentiated print from the scribal system of recording information. The identification of these qualities has been at the heart of Elizabeth Eisenstein’s examination of the printing press and it impact upon the intellectual activities of literate elites in Early Modern Europe.[5]

Eisenstein’s theory holds that the capacity of printing to preserve knowledge and to allow the accumulation of information fundamentally changed the mentality of early modern readers, with repercussions that transformed Western society.[6] Ancient and Medieval scribes had faced difficulties in preserving the knowledge that they already possessed which, despite their best efforts, inevitably grew more corrupted and fragmented over time.[7] The advent of printed material meant that it was no longer necessary for scholars to seek rare, scattered manuscripts to copy. The focus shifted to the text and the development of new ideas or the development of additional information.

Six qualities of print were identified by Elizabeth Eisenstein that were the enablers that underpinned the distribution of content which enhanced the developing Renaissance, that spread Luther’s 97 arguments around Germany in the space of 2 weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial custom- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious.[8] But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technology. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

The six features or qualities of print that significantly differentiated the new technology from scribal texts identified by Eisenstein are as follows:

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.[9]

Some of these features had an impact, to a greater or lesser degree, upon communication structures within the law.

Dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. For example, dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.[10]

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content.[11] Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse.[12] In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact[13] and could be “cured” by the insertion of an “errata” note before the book was sold.[14] Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.[15]

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[16] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Such ordering of material was seized enthusiastically upon by jurists and law printers.[17]

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts.[18]  Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition.[19] The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[20]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which version of the “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys[21] a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force.[22] Proclamation of laws in print was therefore within the reach of a reasonable proportion of the population.[23]

Although the features that I have discussed did not impact upon legal doctrine immediately, recent research would suggest that a preference developed for printed “authorities” was not slow in developing.[24]

Eisenstein’s identification of qualities builds upon McLuhan’s aphorisms. The identification of the qualities of the medium (print) goes below content and examines factors inherent within it and identify fundamental differences between the new medium (print) and the old (scribal production of texts). But importantly the identification of the qualities goes further than merely differentiating a new medium of communication from an old one. It identifies factors inherent in the medium that change attitudes towards information, the way it can be used and the user’s expectations of information. Fixity and standardisation allowed for the development and acceptance of text in print as authoritative which would be a significant factor for the development of law and legal doctrines – an example of McLuhan’s second aphorism.

Thus, Eisenstein’s theory recognises that media works on two levels.  The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies and possesses certain qualities.

The second level is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Thus the delivery system is the technology containing certain qualities that give rise to the second level which generates and dictates behaviour.[25]

Eisenstein’s argument is that when we go beneath the content that the system delivers and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible.

Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way in which we approach information change our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[26]

There can be no doubt that print ushered in a paradigmatically different means of communication based upon its qualities. My suggestion is that the developing reliance of lawyers upon printed sources is in fact informed by the underlying qualities of print rather than the content itself. Indeed, it could be suggested that the information that is the law is dependent upon the qualities of print for both its reliability and authoritativeness.

The advent of the Digital Paradigm, and the recording of legal information in digital format challenges some of the essential qualities of print – the qualities that lawyers, judges and law academics have confidently and unquestioningly relied upon for the authority of the law.

In an article that traced the use of “non-legal” information used in judgments the following observation was made:

“Now, however, the world of information readily available to lawyers and judges is vastly larger. Even apart from the on-line catalogs that make full university collections far more available than ever before to a person physically standing in the law library, there has been a dramatic change in what is available to the typical LEXIS or Westlaw subscriber in a law firm, court, or government agency; and Internet access multiplies the phenomenon even further. There is now a dramatically accelerating increase in the availability of nonlegal sources accessible through on-line information methods….

One of the most important features of law’s traditional differentiation has been its informational autonomy. In many respects legal decision making is highly information dependent and was traditionally dependent on a comparatively small universe of legal information, a universe whose boundaries were effectively established, widely understood, and efficiently patrolled.”[27]

One of the arguments that is advanced by those commenting on the Digital Paradigm and its effects upon law and legal scholarship is to try and locate a form of functional equivalence between the Print and the Digital Paradigms. And the reason for this lies in some of the unique qualities of the digital space itself. On a content level, superficially the content remains the same, but there are now present elements affecting the presence of content and its stability that challenge the certainties that accompanied information in print. I shall develop this point in the second part of this discussion but now I shall turn to the identification of the qualities of digital communications systems – qualities that make it paradigmatically different from what has gone before.

Identifying Digital Qualities

Using Eisenstein’s approach, the qualities present in the digital communications paradigm and which distinguish it from the pre-digital era, can be identified, although in so saying, the inventory that I have compiled is by no means complete.  Nevertheless, these qualities all underlie the way in which content is communicated.  They are not necessarily unique to the Digital Paradigm because, in some respects, some of them at least were present in some form in the pre-digital era.  For example, some of the qualities identified by Eisenstein that were unique to print, such as dissemination, data collection, information reorganization, amplification and reinforcement have a continued manifestation in information communication technologies since the advent of the printing press.  As new technologies have arrived, some of these qualities have been enhanced.  Certainly the quality of dissemination has undergone a quantum leap in the Digital Paradigm from the Print Paradigm.[28]

My tentative inventory has identified some 14 qualities, which dramatically differ digital technologies from those that have gone before.  They are as follows:

Continuing disruptive change.

In the past as new communication technologies have become available; there has been a period where the new technology has an opportunity to “bed in” before the next significant change takes place.  For example the advent of the printing press in 1450 was followed by its spread through Europe, but, apart from improvements in the technology, no new communications technology was present until the development of the electrical telegraph system by Samuel Morse, Joseph Henry and Alfred Vail in 1836.  Effectively, there had been a period of almost 400 years for the printing press to become accepted as a new means of communication.  The telegraph system addressed the tyranny of distance and was followed by Marconi’s long distance radio transmission in the last decade of the 19^th century.  That was followed by developments in radio and within a short time thereafter, the development of television.

It can be seen from this very brief overview that the time between new technological developments in communications has shortened.  Nevertheless, there has been a “breathing space” of increasing brevity between each one.  The advent of digital technologies and particularly the rise of the Internet has meant effectively that breathing space has gone and continuing disruptive change is a reality. The nature of this change has been described in another context as “The Long Blur”[29] and as new information systems have driven change many earlier business practices have changed or, in some cases, become obsolete. Changes in work habits and attitudes, the concept of secure lifetime jobs have vanished along with associated concepts of loyalty to an employer and a recognition of the loyal employee.  Although many new high paying jobs requiring exceptional skills and intelligence exist, many business models are now effectively service industries of which, in some respects, the law may be considered one.[30]

In essence the law is an “information exchange” system with a number of “information flows” throughout it. And why should lawyers and Judges avoid changes in the way in which information is delivered or the impact of the qualities that underlie new communications technologies?  After all, both simply process information in a particular manner.

Permissionless Innovation

Associated with continuing disruptive change is the quality of permissionless innovation, particularly in so far as the Internet is concerned.  In some respects, these two qualities are interlinked and indeed it could be argued that permissionless innovation is what drives continuing disruptive change.  Permissionless innovation is the quality that allows entrepreneurs, developers and programmers to develop protocols using standards that are available and that have been provided by Internet developers to “bolt‑on” a new utility to the Internet.  Thus we see the rise of Tim Berners-Lee’s World Wide Web which, in the minds of many, represents the Internet as a whole.  Permissionless innovation enabled Shawn Fanning to develop Napster; Larry Page and Sergey Brin to develop Google; Mark Zuckerberg to develop Facebook and Jack Dorsey, Evan Williams, Biz Stone and Noah Glass to develop Twitter; along with dozens of other utilities and business models that proliferate the Internet.  There is no need to seek permission to develop these utilities.  Using the theory “if you build it, they will come”[31] new means of communicating information are made available on the Internet.  Some succeed but many fail.  No regulatory criteria need to be met other than that the particular utility complies with basic Internet standards.

What permissionless innovation does allow is a constantly developing system of communication tools that change in sophistication and the various levels of utility that they enable.  It is also important to recognize that permissionless innovation underlies changing means of content delivery.

Delinearisation of information

This quality recognizes the effect of hypertext linking although the idea behind it is not new, nor does it originate with Tim Berners-Lee and the development of the World Wide Web, for it was propounded as early as 1948 by Vannevar Bush.[32]  The reality of information delinerisation in many respects subtly changes approaches to intellectual activity that have their foundation in the printing press.  By virtue of the organization of information in print, certain approaches to intellectual activity and habits of intellectual activity were influenced.

I am not for one moment suggesting that the linear approach to human thought and analysis had its origins with the printing press, for certainly it did not.  But what print did was to enhance and solidify linear thinking.[33]  Where there is standardisation and fixity of information within print, it is possible to develop associated information location devices such as indices and tables of content.  Although tables of content were available within the scribal culture, that table of content was only relevant to the particular volume, given that it was difficult to achieve identical volumes, although it was not impossible.  The mass production of identical copies enabled by print meant that accurate, consistent indices and tables of content could be provided.  This meant that the linear approach to information was enhanced and emphasised and although footnotes could take the reader to different references, to follow such a line would require a departure from the primary text as the reader first located the referenced text and then sought the information within.  In some respects the utilisation of footnotes was a form of “proto‑delinerisation”, if I can put it that way, but it was not until the development of the World Wide Web and the centralisation of information resources within the context of the Internet that full delinerisation became a reality.

The Internet brings the information to the reader and I shall discuss shortly the ways in which the Internet enables that through other qualities.  The print paradigm essentially meant the reader or scholar had to seek texts or other forms of information in a library or various other locations.  In essence the Internet brings the library to the scholar and it is by virtue of that that the delinerisation becomes significant.

By the use of hypertext links, the scholar or reader is immediately able to seek out the other information.  This means that the reading, or information acquisition process, which is essentially linear in following a particular line of argument in the principal text, is interrupted as the scholar or reader follows the hypertext link to the other source of information.  This can be done instantaneously.  The equivalent within the context of the print paradigm would mean that they scholar or reader would stop at a particular footnote, go to the source of the information, say at a library, locate it, read it, consider it, and then return to the principal text.  This would mean that the reading of the principal text would be prolonged considerably.

However, the potential within delinerisation is that it means the primary text no longer need be considered the principal source of information, in that the gathering together of information following hypertext links may result in the totally different approach to analysis than there was before.  Not only would the principal text be subject to scrutiny and critique but it could be considered within the context of a vast range of additional information made possible by hypertext linking.

Delinerisation may well mean that a change could take place in the way in which an argument is developed, in that the manner  of analysis may change.  Linear structure is present throughout the law. For example, current judgment writing style follows a pre-ordained linear structure involving an introduction, identification of issues – both factual and legal – identification of evidence or information relevant to the issues, discussion and analysis of the evidence and matching them up with the issues and law and a conclusion.

New digital technologies mean already that some judgments utilise hypertext links. There are difficulties in this regard with the problem of “link rot”.[34]  Link rot occurs where a  given URL no longer links to material which is referenced, making a citation to that material worthless.  Neacsu observes that

  “many facets of print works such as fixity, uniformity, and authenticity26 are no longer automatically ensured, the concept of reliability has inevitably changed. However, because the fundamentals of Western scholarship are still the same, the need of accessibility of content-identical copies still remains.”[35]

 This is particularly the case with the ability to access cited material, exacerbated by the phenomenon of link rot. Neacsu makes a number of suggestions whereby this problem may be met.

a)      one is by the use of Persistent Uniform Resource Locators (PURLs) which provide a persistent way of locating and identifying electronic documents using the redirect feature built in to the HTTP protocol

b)      Archiving including systems like the Internet Archive whilst recognizing that the scope and the running of this archive does not answer the needs of legal scholarship in that there is no reliable coverage of sources cited in law review articles and no reliable institutional overview.

c)       Law Library preservation systems maintaining a digital archive that includes copies of all documents cited in all journals including student edited journals

d)      The “Legal URL Archive”  which would involve the creation of a mirror site in which duplicates of cited documents would be created with the objective of maintaining the document when it was cited (addressing the issue of stability) and keeping the information publicly available (addressing the issue of accessibility).[36]

As well as the ability to link to other material is the ability to embed other forms of content  – video, audio, animations, diagrams and the like – within a judgment.[37]  This may well mean in the future that the strict linear form of analysis which I have described may become a little less simplistic and a little more “information rich” involving a wider opportunity for the reader to explore some of the underlying support for a judgment and the analysis within it that is more immediate than was the case in the pre-digital paradigm, given the difficulties that one might have in tracking down sources.

This is not to say that linear analysis is dead, but what it does mean is that approaches to analysis may change in subtle ways as the result of the ability to bring all of the information that supports an argument into the one place at the one time.

Information Persistence or Endurance.

It is recognised that once information reaches the Internet it is very difficult to remove it because it may spread through the vast network of computers that comprise the Internet and maybe retained on any one of the by the quality of exponential dissemination discussed below, despite the phenomenon of “link rot.”[38] It has been summed up in another way by the phrase “the document that does not die.” Although on occasions it may be difficult to locate information, the quality of information persistence means that it will be on the Internet somewhere.  This emphasises the quality of permanence of recorded information that has been a characteristic of that form of information ever since people started putting chisel to stone, wedge to clay or pen to papyrus.  Information persistence means that the information is there but if it has become difficult to locate,and  retrieving it may resemble the digital equivalent of an archaeological expedition, although the spade and trowel are replaced by the search engine.  The fact that information is persistent means that it is capable of location.

  Dynamic Information

In some respects the dynamic nature of information challenges the concept of information persistence because digital content may change.  It could be argued that this seems to be more about the nature of content, but the technology itself underpins and facilitates this quality as it does with many others.

An example of dynamic information may be found in the on-line newspaper which may break a story at 10am, receive information on the topic by midday and by 1pm on the same day have modified the original story.  The static nature of print and the newspaper business model that it enabled meant that the news cycle ran from edition to edition. The dynamic quality of information in the Digital Paradigm means that the news cycle potentially may run on a 24 hour basis, with updates every five minutes.

Similarly, the ability that digital technologies have for contributing dialog on any topic enabled in many communication protocols, primarily as a result of Web 2.0, means that an initial statement may undergo a considerable amount of debate, discussion and dispute, resulting ultimately in change.  This dynamic nature of information challenges the permanence that one may expect from persistence and it is acknowledged immediately that there is a significant tension between the dynamic nature of digital information and the concept of the “document that does not die”.[39]

Part of the dynamic of the digital environment is that information is copied when it is transmitted to a user’s computer.  Thus there is the potential for information to be other than static.  If I receive a digital copy I can make another copy of it or, alternatively, alter it and communicate the new version.  Reliance upon the print medium has been based upon the fact that every copy of a particular edition is identical.  Thus, authors and publishers can control content.

In the digital environment individual users may modify information at a computer terminal to meet whatever need may be required.  In this respect the digital reader becomes something akin to a glossator of the scribal culture, the difference being that the original text vanishes and is replaced with the amended copy.  Thus one may, with reason, validly doubt the validity or authenticity of information as it is transmitted.

Dissociative Enablement

The quality of dissociative enablement has implications for user behaviour.  Another way of describing dissociative enablement could be disinhibition.  This quality inherent within Internet technologies enables an Internet user to engage in cyber-stalking, to embark on a discussion utilising language and tone that one would be reluctant to use to the correspondent or auditor face to face[40], and enables the Internet criminal to commit fraud or other forms of Internet crime without having to confront the victim.  Dissociative enablement or disinhibition enables behaviours to take place on the Internet that might not otherwise take place within the physical context.  Dissociative enablement or disinhibition have an impact on the nature and quality of discourse within the Internet space.

In many respects, it enables what perhaps may be a more robust form of discourse than might otherwise be the case.  Whether or not that is a good thing is not for me to say.  Yet it is behaviour that this quality enables that cannot be ignored, and, of course, it is ultimately tied in with the delivery of content and the nature and quality thereof.

Participation and Interactivity

A further aspect of the digital environment that differs from the print paradigm is one of interactivity and I have already made reference to this is my discussion about dynamic information.  Reading from the print media is essentially a passive activity and any interactivity may be on the part of the reader making notes or writing thoughts or concepts that develop as a result of the reading process.  In the digital environment the reader may interact with the text as it is presented.  In this respect the acquisition of information in the digital environment become associative and non-linear.

In some respects participation in the context of social interaction  is associated with dissociative enablement and with the information dynamic.  But the Internet enables a greater degree of participation in dialog and discourse than might earlier have been the case.  In the pre-digital paradigm participation within a discussion or engagement with an issue may only have been available through the “letters to the editor” column or perhaps, if one were so motivated, pamphleteering.  The Internet now enables immediate participation within a debate and the ability to share one’s thoughts through the use of blogs, Twitter, Facebook and other forms of social media.  Furthermore, the ability to participate, engage in debate, seek out information and engage with others probably is the greatest opportunity to embark upon a form of participatory democracy.  On a global sense, that mirrors the Athenian form of participation and perhaps may even be the first time that the community has had such an opportunity to so engage.  The quality of participation is driving many governments towards considering on-line voting,  recognising that the Internet enables an opportunity for greater engagement by the community with the political system.  It doesn’t stop there.  The participatory possibilities of the Internet could well mean that in the future juries would hear trials on-line rather than being physically present in a court room.

Volume and capacity

The data storage capabilities of digital systems enable the retention and storage of large quantities of information. Whereas books and other forms of recording information were limited by the number of pages or the length of a tape, the potential storage capabilities inherent in digital systems while not limitless nor infinite are, comparatively with other media, significantly greater. This phenomenal increase in the amount of information available has a corresponding downside in that information location can, by virtue of volume alone, become difficult. This is resolved by other qualities of the technology. However, information volume is an issue that has an impact upon certain understandings that apply to law and legal principles and which I shall address at a later point in this paper.

Exponential dissemination

Dissemination was one of the leading qualities of print identified by Eisenstein, and it has been a characteristic of all information technologies since. What the internet and digital technologies enable is a form of dissemination that has two elements. One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender. Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential  dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before. In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and samizdats but in these cases dissemination was very small.[41]  Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.[42]

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow  with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users. Indeed, news organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists.[43]  Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This in turn exacerbates the earlier quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.[44]

The “non-coherence” of information

If we consider a document – information written upon a piece of paper – it is quite easy for a reader to obtain access to that information long after it was created. The only thing necessary is good eye sight and an understanding of the language in which the document is written.

Data in electronic format is dependent upon hardware and software. The data contained upon a medium such as a hard drive requires an interpreter to render it into human readable format. The interpreter is a combination of hardware and software. Unlike the paper document, the reader cannot create or manipulate electronic data into readable form without the proper hardware in the form of computers.[45]

Schafer and Mason warn of the danger of thinking of an electronic document as an object ‘somewhere there’ on a computer in the same way as a hard copy book is in a library. They consider that the ‘e-document’ is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, are assembled, processed and rendered legible for a human user. Schafer and Mason observe that in this respect the document as a single entity is in fact nowhere. It does not exist independently from the process that recreates it every time a user opens it on a screen.[46]

Computers are useless unless the associated software is loaded onto the hardware. Both hardware and software produce additional information that includes, but is not limited to, metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology and machinery makes electronic documents paradigmatically different from ‘traditional documents.’ It is this mediation of a set of technologies that enables data in electronic format – at its simplest, positive and negative electromagnetic impulses recorded upon a medium – to be rendered into human readable form. This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object. Much will depend, for example, upon the word processing programme or internet browser used.

The necessity for this form of mediation for information acquisition and communication explains the apparent fascination that people have with devices such as smart phones and tablets. These devices are necessary to “decode” information and allow for its comprehension and communication.

I made reference in the introduction to this paper to the issue of ‘functional equivalence’ and perhaps the only way in which an electronic document may be seen as ‘functionally equivalent’ to a paper based document may be in the presentation of information in readable form. In the case of a Firm of Solicitors v The District Court Auckland,[47] Heath J noted that s 198A of the Summary Proceedings Act 1957 was designed to deal with a paper based environment but that now more often than not, information is stored primarily in electronic form. He adopted a functional equivalence approach to executing a search warrant.

With respect I consider that ‘functional equivalence’ is an unhelpful concept, although to make the statute work in 2004, it was probably the only option available to Heath J. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented.

In the context of the New Zealand Search and Surveillance Act 2012 it is interesting that the complexity of electronic information is something that is capable of being searched for or ‘seized’ yet is described as an ‘intangible’ thing. The ultimate fruit of the search will be the representation of the information in comprehensible format, but what is seized is something paradigmatically different from mere information, the properties of which involve layers of information. It is clear that the legislation contemplates the end product – the content contained in the electronic data – yet the search also involves a number of aspects of the medium as well. In the ‘hardcopy’ paradigm the medium is capable of yielding information such as fingerprints or trace materials, but not to the same degree of complexity as its digital equivalent. Similarly, the complexities surrounding E-Discovery demonstrate that an entirely different approach is required from the traditional means of discovery.[48]  Although Marshall McLuhan intended an entirely different interpretation of the phrase, ‘the medium is the message,’[49] it is a truth of information in digital format.

 Format Obsolescence.

In the print and scribal paradigms, information was preserved as long as the medium remained stable. The Dead Sea Scrolls and early incunabula from the print paradigm provide examples. But, as I have observed above, no intermediate technology was required to comprehend the content.

The quality of continuing disruptive change means that not only are digital technologies and communications protocols in a state of change, but within many of the programs that are commonly used, new versions come available with enhancements and often new formats. This is further complicated by the unwillingness of software developers and distributors to continue support for products that have been replaced by new versions. The problem of content access is further exacerbated when earlier formats for content or data storage are replaced, and therefore the information stored in those earlier formats cannot be accessed.

For example, Microsoft Word uses the file extension .doc for its native file format. However, the reality is that the .doc extension encompasses four distinct file formats:

1. Word for DOS
2. Word for Windows 1 and 2; Word 4 and 5 for Mac
3. Word 6 and Word 95 for Windows; Word 6 for Mac
4. Word 97 and later for Windows; Word 98 and later for Mac

Most current versions of Word recognize the fourth iteration of the .doc format which is Binary File Format implementing OLE (Object Linking and Embedding) structured storage to manage the structure of the file format. OLE behaves rather like a hard drive system and is made up of a number of important key components in that each Word document is composed of “big blocks” which are almost always (but do not have to be) 512 byte chunks. Thus a Word document’s file size will be a multiple of 512.

“Storages” are analogues of the directory on a disk drive, and point to other storages or “streams” which are similar to files on a disk. The text in a Word document is always contained in the “WordDocument” stream. The first big block in a Word document, known as the “header” block, provides important information as to the location of the major data structures in the document. “Property storages” provide metadata about the storages and streams in a doc file, such as where it begins and its name and so forth. The “File information block” contains information about where the text in a Word document starts, ends, what version of Word created the document and other attributes. Microsoft has published specifications for the Word 97-2003 Binary File Format but it is no longer the default, having been replaced by the Office Open XML standard, indicated by the newer .docx extension.

The problem is that if one wishes to open a Word document created by a version preceding Word 97 in a recent iteration of Word (say Word 2010) it will be blocked. There is a work-around but that involves a level of complexity that may discourage average users.[50] Although there may be converters available for older formats, again this adds an additional layer of complexity for those who are not adept at computer use.[51]

An additional layer of difficulty arises where there is lack of interoperability with proprietary file formats from other data or text storage programs and where those programs have been discontinued and are no longer available. This is a problem encountered particularly in the E-Discovery when historic documents are sought. In addition, there may be hardware difficulties where data may be stored on old media such as old floppy disks. Modern computers no longer include a floppy disk drive – indeed data is rarely if ever stored on such low capacity media – and only allow USB storage devices to be used.

Because of the way in which information is encoded in the digital environment, the information exists, but is not available. Thus, the document is still “alive” but is in a state of suspended animation until its content can be accessed.

Format obsolescence does not challenge the concept of Information persistence or endurance because aspects of the Internet enable that. It is, however, a subset of the necessity for technological mediation between stored digital data and its rendering in a comprehensible form.

The last three qualities are interrelated.  These are:

Availability of Information

Searchability of Information

Retrievability of Information

As I have earlier suggested, these qualities are associated with persistence of information and the information dynamic, but what is important is, as I have already suggested, that the Internet enables the information to come to the user.  No longer does the user have to go to the information.  This recognises one of the fundamental realities that characterises the nature of information within the Internet space and one that must be also considered in terms of information and use generally and that is the concept of “information flow” to which I have already made reference.

The Internet enables and enhances the flow of information towards the user, rather than the user directing him or herself towards the information.  This is recognised by the availability of information which, as I have suggested, is associated with information persistence.  What is significantly different with the Internet is that the information is constantly available, 24 hours a day, 7 days a week, 365 days of the year.  The Internet is always on – it is always “open”.  Information availability is not restricted by time or the presence of a librarian and is impeded only if the site where the information is held is down for some reason.

One of the problems with information both in the sense of persistence and available is finding out where it is.  Before the Internet went “public” and was essentially a university or research based tool, users developed means of locating information of which Gopher was one example.  The arrival of the World Wide Web resulted in the development of various search engines of which Google has now become the dominant force.  Searchability of information means that the vast library of the Internet can reveal its treasures as long as one is competent in the use of a search engine.  Most users utilise pretty basic search terms but more sophisticated use of search terms and construction narrows the scope of the information sought and returns more precise results.  The important thing is that searchability of information means that the information availability is enhanced.

The third part of the trilogy of course is retreivability.  This means that the available information has been located by a search is instantly retrievable, and importantly, the information flow is towards the user, rather than the reverse.

Some Observations

Before concluding this discussion about the qualities of the Digital Paradigm there are two comments that need to be made The first is, as I have already suggested, there is an overlap or merger between some of the qualities that I have identified. The quality of Information Persistence exists in tension with the dynamic nature of information, with format obsolescence and digital information non-coherence. Certainly the Internet and its protocols give greater emphasis to Information Persistence than the other competing qualities, but it must be recognized that this example of a “qualities tension” means that any analysis of the impact of Digital Paradigm qualities must be a nuanced one. On the other hand some approaches may only involve the application or consideration of some of the qualities. Internet-based analysis is not so likely to involve format obsolescence which is very likely to arise in a consideration of E-Discovery approaches.

The second is about the wider issue of the effect the Internet may be having upon the way that we think.

Will delinearisation change the way that we think? This gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[52]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[53] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[54] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

Like Krotoski, William Bernstein[55] rejects Carr’s thesis. Bernstein points out that neuroplasticity is a phenomenon well known to brain researchers. He then goes on to ask and answer Carr’s question

“Does the Web rewire your brain? You bet; so does everything you actively or passively experience. Literacy is possibly the most potent cerebral rewire of all; for five thousand years humans have been reassigning brain areas formerly needed for survival in the natural environment to the processing of printed abstractions. Some of this commandeered real estate has almost certainly been grabbed, in its turn, by the increasing role of computers and the Internet in everyday post-industrial life. Plus ca change.[56]

Bernstein then goes on to examine Carr’s theory that Internet use decreases concentration on the matter at hand, emphasising the use of hyperlinks. Bernstein accepts that we have better information retention if it is placed in front of us on one page rather than chasing it through a maze of hypertext links. On the other hand, he observes, real life rarely supplies us with precisely the information that we need in one document. Those skilled at following informational threads through different sources will succeed more often than those spoon fed information.[57]

Bernstein finally confronts Carr’s argument in this way:

“Carr’s thesis almost automatically formulates its own counterargument: Life in the developed world increasingly demands non-rote, nonlinear thought. Shouldn’t learning to navigate hypertext skilfully enhance the ability to make rapid connections? Shouldn’t such abilities encourage the sort of nonlinear creative processing demanded by the modern work environment, and make us smarter, more productive, and ultimately more autonomous and fulfilled…..

If the Web really is making American stupid, then shouldn’t citizens of more densely wired nations, such as Estonia, Finland and Korea, be hit even harder? The question answers itself.”[58]

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[59] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[60]

Law and Precedent in the Print and Digital Paradigms

The assumptions that underlie the doctrine of precedent provide an example of how Digital Paradigm qualities present a new challenge to the law.

For hundreds of years law was declared or “discovered” by Common Law Judges on a case by case basis.  Judges might follow the decisions of other Judges in similar cases but because of the rarity of adequate written records, and the distance between Courts coupled with inadequate transportation and communication systems there was considerable variance between and even within jurisdictions.  Law was highly localised and individualised.  The goal of the Monarch’s law may have been, as Maitland put it in the context of feudal contract , to swallow all other law but it was no easy task to accomplish at the time.[61]

The advent of the Print Paradigm and the qualities of print affected the structure, the capabilities and functioning of law in various ways.  It is not “fine print” that characterises the law, but print itself.  Print effected and affected the organisation, growth and distribution of legal information.  The processes of law, the values of law and many of the doctrines of law required a means of communication that was superior to handwriting and handwritten manuscripts to store information.

Ethan Katsh puts forward the proposition that changes in the means used to communicate information are important to law because law has come to rely on the transmission of information in a particular form.  Katsh propounds that law does not simply produce information but structures, organises and regulates it.[62] It does this primarily through the medium of print.

Law before Gutenberg was different from law today in significant ways.  The printing press made it possible for the past to control the future as never before.  Prior to the printing press scribes merely took notes, under the Judges direction, of what was said and done.  Without a verbatim transcript of judicial proceedings, later Judges could not be certain what was said and done previously.  Thus with most law residing in the minds of Judges and not in black and white on paper, Judges could innovate and invent while pretending to follow strict precedent.  This ended with the printing press, printed judicial decisions, printed positive law and especially printed constitutions.[63]

Printing and the qualities identified by Eisenstein enabled many copies of one text to be distributed throughout a community or a country.  It meant that the mistakes, errors and glosses that had previously been a characteristic of the scribal culture were no longer perpetuated.  It meant that the words that were printed and read by a person in London were the same as those read from the same edition by a person in New Orleans.  The printed word could not be changed.  Once it was on paper it was immutable.  Printing replaced the brittle oral and script forms of communication with a stable, secure and lasting medium.  Memory, so vital for the oral tradition, could now be committed to print.  Instead of looking for the earliest or original manuscript that had not received the attention of glossators, one seeking information would look in the latest print edition.

In the medieval period, oral contracts were often preferred over written ones. The nature of writing and the idea of placing reliance upon or consulting a written document was not common.  Memory was considered to be more trustworthy than something written and practical questions were answered by oral testimony and not by reference to document.[64] If there was a dispute over land ownership and a written charter needed interpretation or was contradicted by what was remembered, memory took precedence over written proof and the principle that an oral witness deserved more credence than written evidence was a legal commonplace.

The development of movable type resulted in a product more fixed and stable than the work of a scribe.  Forgery and careless copying became less common.  Granted, printed works could contain errors but a large number of standardised copies provided works that were not easily changed.  That in itself gave a sense of authority and authenticity that had been lacking earlier.  A reader could assume that the printed word were the words of the author.

The advent of print provided a keystone for the legal process.  The development of the common law by a system of precedent is expedited when lawyers and Judges have a common reference point and can rely on the fact that there are exact copies of a case or a statute in different places.  Thus, lawyers and Judges are assured that the language that they are using is identical to the language consulted by others.

Printing enabled the standardisation of legal information and the words on paper began to acquire an authority that had been lacking in the scribal period.  Thus law, previously associated with custom and the remembered words of Judges and what was contained in the Year Books, gave way to law based upon books. Printing was introduced into England in 1476 and five years later the first law books were printed.  In 1485 the printing of Parliamentary Session Laws began.

The history of the doctrine of Judicial precedent is intimately bound up with the history of law reporting and the development of law reporting, as we know it, could not have taken place without print [65] By the Eighteenth Century the printed word was sufficiently reliable that;

 “Each single decision standing by itself had already become an authority which no succeeding Judge was at liberty to disregard.”[66]

In 1765 Lord Camden claimed that if the law was not found in the books it was not law[67].  By the end of the Eighteenth Century the importance of Law Reports was such that Edmund Burke claimed “to put an end to the reports is to put an end to the law of England”[68]

Thus the development of print and the development of precedent, a foundation stone of our common law legal structure, are inextricably linked.  Precedent provides fairness, in that like cases should be treated alike, and as an aid to judicial decision-making to prevent unnecessary reconsideration of established principles.[69]

The development of precedent provides certainty and security in the law so that citizens may rely upon it to order their affairs.  Yet, by the same token, the legal process is not renowned as innovative and has rarely been at the forefront of change.  Rather, it puts brakes on change by way of precedent.

Precedent has been adopted by the legal process to integrate legal change to the pace of change in society.  If the law is to become more tolerant of change the role of precedent will continue to evolve.  It will not disappear as a concept but it will not be the concept to which we have become accustomed.

The development of precedent has been somewhat serendipitous. Holdsworth observed “One of the main conditions for the success of the system of case law is a limit on the number of case reports”[70] and Grant Gilmore[71] has observed that;

 “When the number of printed cases becomes like the number of grains of sand on the beach, a precedent-based case law system does not work and cannot be made to work … the theory of precedent depends, for its ideal operation, on the existence of a comfortable number of precedents, but not too many.”

 The nature of the printing technology imposed a limitation on the number of cases that could be reported and printed and the speed with which they may be published.  Indeed, the authority of case law has been enhanced by a slow development where reported decisions are not rapidly modified.  Leading cases not only settle a particular point of law but also add to the general authority of decisions because they settle a point with some finality.

Thus, the very nature of the print paradigm has placed certain boundaries upon the development of law and has allowed for the development of the doctrine of precedent to the point where we are today.

Diana Botluk describes the challenges posed by Internet publication in the following way:

“Publication on the Web can often bypass.., traditional methods of filtering information for quality, thus making the end user of the information more responsible for the evaluation process.”[72]

The traditional methods to which she refers include determining that

a) “an authoritative source” has written or published the information;

b) that the information has been “authenticated by editorial review”; and

c) that it has been “evaluated by experts, reviewers, subject specialists or librarians.”[73]

Print and Precedent as a Brake on Change

Thus the law had an ally in working towards its goal of maintaining a measured pace of change.  The silent partner which has assisted in fostering a public image of law as an institution that is both predictable and flexible is the communications medium that has dominated the legal process for the past 500 years, the medium of print.  As the new digital media of the twentieth and twenty-first centuries have taken on some of the duties performed by print, one of the consequences will be to upset the balance of the law has worked so diligently to achieve over several centuries.[74]

The importance of publication – up until recently in print – as an authoritative concept is put into sharp focus by the following comment by Professor Robert Berring:

“The doctrines of the law are built from findable pieces of hard data that traditionally have been expressed in the form of published judicial decisions. The point of the search is to locate the nugget of authority that is out there and use it in constructing one’s argument.

Because legal researchers are so accustomed to this idea, it is difficult to realize how unique this concept is in the world of information. In most fields in the humanities or social sciences, a search of the literature will reveal certain orthodoxies or prevailing views, certain points in contention with each side having its own warrior-like adherents, but there are no points of primary authority. There are no nuggets of truth or treasure …. Legal researchers believe that there are answers out there that are not just powerfully persuasive, but are the law itself.”[75]

Precedent has been a brake on change. To continue the motoring metaphor, within the law it has also encouraged the rear-view mirror[76] as a mode of thinking about the present and future.  Paul Levinson suggests, in the context of media studies, that we frequently use backward looking metaphors for the new digital environment.  Realaudio becomes equated with “radio” – a metaphor enhanced by streaming content.  Research takes place in a “digital library”.  An online chat room is treated as a “café”. Information provided in a web browser is a “web page” and information that does not appear on the screen extends the print metaphor to one from the newspaper world – the information is “below the fold”.

These analogies, according to Levinson, call attention to the benefit of walking into the future with our eyes upon the past, but he also points out that the mirror may blind us to ways in which the new medium is not analogous to the media of the past.  If we use the Internet as a library, unlike the real world library, when the Internet connection crashes it is impossible to continue reading the text.  If for some reason the lights go out in the library an alternative light source can be found.  Levinson demonstrates the problem in this way:

“If we stare too long into the rear-view mirror, focussing only on how the new medium relates to the media of the immediate past, we may crash head-on into an unseen, unexpected consequence.  On the other hand, if we look only straight and stiffly ahead, with no image or idea of where we are coming from, where we have just been, we cannot possibly have a clear comprehension of where we are going. …  A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”[77]

Using Levinson’s rear-view mirror and recognising that by developing that metaphor further  we are in a state of movement and in transition – moving away from the print paradigm and moving towards the digital paradigm, not yet divorced from the one and not fully attached to the other. It took a generation for print technology to move from the lectern-based bible of Gutenburg to the convenience of a handheld book that could be included in a traveller’s pack.  Henry VII recognised the value of the new technology when he came to the throne 10 years after Caxton introduced the press by appointing a Stationer to the King – an office which later became the King’s Printer. Nearly 100 years after Caxton, Edmund Plowden recognised the damage that could be done to his reputation if he did not supervise the printing of his Commentaries. Lawyers and Judges were giving credit to printed material in the early Seventeenth Century[78] at the same time as Sir Edward Coke was ensuring his approach to the law would be disseminated and preserved by the printing of his Reports and Institutes.

In some respects this explains why it is that we seek to explain and use new communications phenomena by the term “functional equivalence.” Functional equivalence in itself is a manifestation of rear view mirror thinking – an unwillingness to let go the understandings of information that we had in the past. It roots us in an environment where the informational expectations no longer pertain – where the properties of the equivalent technology are no longer applicable or valid

This reflection upon the transition from the scribal culture to that of print, whilst recognising that the two co-existed for a considerable period demonstrates that we must adapt to new technologies and at the same time adapt the old. But we should not adapt nor allow the values arising from the qualities of the old technology to infect or colour our understanding or approach to the new. Certainly the use of precedent, by its very nature involves use of the rear view mirror. This is not to decry the importance and necessity of precedent as a means of creating certainty and consistency in the law. But, as the argument develops, it may be seen that we may lose those two elements of the law that we take so much for granted as we move into an environment of constant, dynamic and disruptive change.

We are so familiar with the paradigm of print that we do not give its ramifications or its qualities a second thought. The qualities of dissemination, standardisation, fixity of text and the opportunity to cross reference to other printed sources go unnoticed. We have become enured to them. Yet they provide the foundation for our acceptance of printed law as reliable and authoritative. Earlier editions of the Blue Book, which is the American Uniform System of Citation not unlike the rules provided in the New Zealand Law Style Guide, provided that citations should be to paper versions. Rule 18.2 provided

This rule requires the use and citation of traditional printed sources, except when the information is not available in a printed source, or if the traditional source is obscure or hard to find and when the citation to an Internet source will substantially improve access to the same information contained in the traditional source. In the latter case, to the extent possible, the traditional source should be used and cited.[79]

Since that was written there have been two subsequent editions of the Bluebook, but the directive preferring print sources remains the same although they may be forgone if “there is a digital copy of the source available that is authenticated, official, or an exact copy of the printed source.”[80]

In its preference for printed sources, the Bluebook impliedly recognises that information in the Digital Paradigm by its nature and with its different underlying qualities presents an entirely different information environment[81]

One of the most significant aspects of the Digital Paradigm is continuing disruptive change.  Moore’s Law[82] is as applicable to information in cyberspace as it is to the development of microprocessor technology. New information becomes available and is disseminated more quickly and exponentially via the Internet than previously through the print media.  The Internet enables the distribution of Court decisions within hours of delivery rather than the months that it took for cases to be edited and printed in law reports and the information flow normally experienced where the student or lawyer would go to a library to access information is reversed – the information now is delivered to a local device.

New information can be manipulated more quickly by virtue of the dynamic document and participation. In the legal environment new cases and new developments may be publicised more rapidly but by the same token, unlike a paper document, a digital document “bears little evidence of its source or author.[83] In addition, greater credit may be given to “image-based” formats but Rumsford and Schwartz do not believe that “non-imaged” documents should receive the same treatment as paper.[84]

Continuing change challenges even the certainties that law librarians try to ascribe to certain formats – new information is constantly replacing old information and old information appears to be less and less relevant to the solution of modern problems. Our legal system, particularly in terms of the development of principle, has moved at a measured pace.  The availability of large amounts of new information and the change in perspective that that new information introduces creates challenges for a system that is accustomed to looking backwards towards precedent and that moves at a sedate pace.

The development of precedent is characterised by what could be referred to as landmark decisions or leading cases.  These settle a particular point of law.  They also add to the general authority of judicial decisions because they appear to settle the question with finality.  The digital environment provides us with more material in more recent cases that more swiftly modify the broad statements of principle contained in landmark decisions.

Other qualities also come into play, many of which challenge those of the print paradigm upon which the law relies. In my discussion about delinearisation of information I made reference to the fact that the primary text may no longer be considered the principal source of information, and that text could be considered within a wider informational context and could change the linear approach to analysis. This quality may underlie a challenge to a strict form of analysis based upon an a previously accepted line of cases.

Information persistence and endurance is what the law requires for its certainty – something that the Print Paradigm has been able to give it, but the tension arises with dynamic information which constantly develops, grows and changes. This is associated with the quality of volume and capacity. The storage capacity of computer systems is so large as to be almost unlimited.  At a time when print libraries are nearing capacity with the amount of printed information available digital systems can be seen as a blessing, but also pose serious challenges to established legal thinking. One of these lies in the identification of the necessity for a critical mass of decisions for the development of a precedent based principle.[85] The quality of high volume of decisions challenges this. The information is available, searchable and retrievable and because of the higher volumes of caselaw available the minutiae of fact situations or the nuance of legal interpretation becomes apparent, eroding the earlier certainties that were present with the “critical mass” of information that was a characteristic of precedent.

The Digital Revolution and the Legal Process

In 1996 in his book The Future of Law: Facing the Challenges of Information Technology[86] Richard Susskind suggested that today we are between the phases of print and information technology and, in essence, are in a transitional phase[87] similar to the co-existence of the scribal and print cultures in the law in the late Sixteenth and early Seventeenth Centuries.  He was of the view, correctly in my opinion,  that in the days of the oral tradition and the scribal culture, change was a rarity.  In the Digital Paradigm, information is dynamic and subject to regular alteration rather than remaining in static form and from this arise a number of consequences or features. Susskind described them as unfortunate, although it may be that there is a certain inevitability arising from the qualities of information in the Digital Paradigm.

Hyper-regulation, the Internet and Too Much Law

One of the features identified by Susskind is what he describes as the hyper-regulated society.  Susskind identifies the phenomenon which I suggest is driven by the qualities of the Digital Paradigm. Being hyper-regulated means that there is too much law for us to manage and our current methods for managing legal materials are not capable of coping with the quantity and complexity of the law which governs us.  Another of the difficulties pointed to by Susskind is that hyper-regulation is aggravated by difficulties in the promulgation or notification of legislation and case law.  One of the requirements of Lon Fuller in his book “The Morality of Law” was that a failure to publicise and make available rules that citizens are expected to observe results in bad or, at worst, no law.

Although the digital environment has not been solely responsible for the hyper-regulation described by Susskind, certainly the ability to generate large quantities of printed material has moved from the print shop to the photocopier and then onwards to the word processor with high capacity laser printers and now to digital space via the Internet.  Technology allows text to be transmitted and disseminated at minimal cost.

Susskind’s consideration of hyper-regulation is further evidenced by the large volume of legal material that now was available in print but now more so in electronic form from the Courts and from legislatures. Whilst one should resist the suggestion that such volume is overwhelming, certainly there is more material available for consideration. Pressures, particularly upon legislators and the Judiciary, to perform within set time frames simply mean that much potentially relevant material may well be overlooked.  A further consequence of the hyper-regulation described by Susskind is the wide variety of information resources provided by new technologies.  For example, television is no longer a limited number of network channels but Cable TV, satellite systems, Internet TV and on-line content distribution such as Hulu and Netflix thus allowing almost an infinite number of sources of information.  The television is an Internet portal for the home.

Thus, we have before us a huge selection of informational alternatives.  The information received from each source may be different in appearance and content from the information received by others.  Furthermore, the nature and content of information will change.  The day may not be too far off when information from the Courts in terms of decided cases may become akin to watching a breaking news story on YouTube or social media as more and more information becomes available from the Courts and is disseminated or becomes the subject of commentary.

Thus, from hyper-regulation and the vast amount of material provided by the digital environment, which, by its nature, is dynamic and subject to rapid and constant change, a lawyer or Judge searching for relevant cases now has more material to sift through, more detail to assimilate and more flexibility in terms of potential arguments or outcomes.  The consequence of this could be to change the nature of legal argument from what could be described as a linear progression through a line of cases in the development of a precedent to the point where the authority of those cases is diminished or negated by the wealth of material available.  Holdsworth comments that a system of precedent:

“Will not work so satisfactorily if the number of Courts, whose decisions are reported, are multiplied.  The law is likely to be burdened with so greater mass of decisions of different degrees of excellence that its principles, so far from being made more certain by the decisions of new cases, will become sufficiently uncertain to afford abundant material for the infinite disputations of professors of general jurisprudence.  A limitation is needed in the number of reported cases …  English lawyers have hardly realised that it was a condition precedent for the satisfactory working of our system of case law.”[88]

The more cases that are available the greater the flexibility and the creation of a legal argument but the adverse consequence is that in terms of developed principle the link with precedent becomes more ephemeral. The delinear approach may introduce an alternative to the linear progression that has marked the development of principle.

The Internet has made more legal information available to more people more immediately than at any other time in human history. Although this fulfils the philosophical and societal ideals of bringing law to the people and providing for a fully informed populace, the implications for informational reliability and for precedent are substantial.

Internet availability of judgements at a number of levels means that decisions are accessible everywhere, cross-jurisdictionally. The prohibitions on the citation of unpublished opinions in the United States may well crumble in the face this technological revolution.

It is clear that the increased availability of and access to judicial pronouncements and the number of opinions and judgements that are available in addition to traditional hard copy reported decisions has serious ramifications both for the precedential value of those decisions, and indeed for the concept of precedent itself. There is no doubt that the law is unable to resist the tides of change.  The question is: During this transitional period, how may the law accommodate change and maintain its integrity in providing the rules that regulate the activities and relationships of citizens within the community?  The law traditionally looks back to precedent but the digital environment means that the depth of field is shorter.  The problem is with the vast amount of material that is available, how can one maintain a precedent-based system that will rely upon dynamic changing material rather than the reliability provided by the printed law report.

In addition, an overly large volume of decisions may mean that cases become determined not on a carefully refined and developed legal principle, but on factual similarities. The authority of precedent in the past has depended upon the fact that the legal process does not rapidly modify reported decisions.[89]

The Twilight of Precedent ?

It seems that there may be two possible alternative ways forward. One is based on the concept of functional equivalence. This solution focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its qualities make the nature of information and its communication different from what went before. In addition content itself lacks the fixity or stability of printed text. It may be suggested that a number of rules might be developed around which the challenges posed by digital qualities may be met. Such an approach artificially tries to maintain a reality that is no longer present.

By the same token technological co-existence will allow the status quo to continue, at least for a reasonable period of time, in the same way that manuscript and scribal habits continued well past the introduction of the printing press. The pace of change, as suggested by Susskind, will overtake co-existence within a generation or so, if that, rather than over a period of centuries.

The real test will probably come as lawyers are drawn from the ranks of those commonly described as Digital Natives[90] – those who have grown up in the Digital Paradigm and know no other means of information communication apart from device driven digital ones.

A way in which functional equivalence may be maintained, however, is if the technology itself may provide an answer – a technological solution to the problems that digital qualities pose. This may be termed the “Charles Clark” solution deriving from his oft-quoted solution to challenges to intellectual property in the Digital Paradigm – “the answer to the machine is in the machine.”[91]

But what if the machine does not provide an answer and digital qualities do force a re-assessment of precedent as a result of the challenges posed by the qualities of digital information systems?  What shape will precedent and the common law then take? Will the detailed principles developed by precedent become a series of broadly stated principles rather than the refined an intricate intermeshing of decisions that exists at present? Will the common law as we understand it wither or perhaps be replaced by a rule-based system similar to that of some European countries? Given the suggestion that print sources incline one towards legal principles while keyword searches are more apt to generate groups of cases based upon similarities of fact[92] will litigants, frustrated by lack of clarity, consistency and predictability of outcome where judges rely only upon fact specific outcomes, turn to arbitrators and mediators who are quicker, cheaper and less troubled by the procedural arcana of a Court.

It may well be that by travelling the digital path (and that journey, once started, cannot be retraced) we are irrevocably committed to a course that will change the doctrine of precedent as we know it.

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[1]Marshall McLuhan Understanding Media: The Extensions of Man (Sphere Books, London 1967)

[2] Ibid.

[3] Ibid. p. xxi

[4] Elizabeth Eisenstein The Printing Press as an Agent of Change  (Cambridge University Press, Cambridge, 1979) 2 Vols. Reference will be made to the 1 volume 1980 edition; Elizabeth Eisenstein, The Printing Revolution in Early Modern Europe (Cambridge University Press (Canto), Cambridge, 1993).

[5] Above n. 4

[6] Eisenstein The Printing Press as an Agent of Change above n. 4 p. 159.

[7] Thomas Jefferson observed that because a larger number of books were printed than available in manuscript, the chances of more copies surviving were greater. Thomas Jefferson to Ebenezer Hazard, 18 February 1791 in M.D Peterson (ed) Thomas Jefferson: Writings (Library of America, New York, 1984) p. 973. Jefferson also expounded on the preservative power of print in a letter to George Wythe dated 16 January 1796 stating of his researches into the laws of Virginia  “our experience has proved to us that a single copy, or a few, deposited in MS in the public offices cannot be relied on for any great length of time.” see p.1031

[8] See for example the debate between Adrian Johns and Elizabeth Eisenstein – Adrian Johns, “How to Acknowledge a Revolution” (2002) American Historical Review 106; Elizabeth Eisenstein, “An Unacknowledged Revolution Revisited”  (2002) American Historical Review 87; Elizabeth Eisenstein “A Reply – AHR Forum” (2002) American Historical Review 126. See also Adrian Johns, The Nature of the Book (University of Chicago Press, Chicago, 1998); David McKitterick, Print, Manuscript and the Search for Order 1450 – 1830 (Cambridge University Press, Cambridge, 2003); Eric J Leed “Elizabeth Eisenstein’s The Printing Press as an Agent of Change and the Structure of Communications Revolutions ”  (Review) (1982) 88 American Jnl of Sociology 413; Diederick Raven,“Elizabeth Eisenstein and the Impact of Printing” (1999) 6 European Review of History 223; Richard Teichgraeber “Print Culture” (1984) 5 History of European Ideas 323; William J Bouwsma “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (Review) (1979) 84 American Historical Review 1356; Jack Censer “Publishing in Early Modern Europe” (2001) Jnl Social History p.629; Charles B Schmitt “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (1980) 52 Jnl Modern Hist 110; Carolyn Marvin “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (Review) (1979) 20 Technology and Culture 793 together with a recent collection of essays examining Eisenstein’s theory and its impact Sabrina Alcorn Baron, Eric N Lindquist, Eleanor F Shevlin  (eds) Agent of change : print culture studies after Elizabeth L. Eisenstein ( University of Massachusetts Press, Amherst, 2007)

[9] Eisenstein The Printing Press above n.4 generally p. 43 et seq; especially p.71 et seq. The Printing Revolution above n. 4 p. 42 et seq.

[10] Early print fonts, especially in legal works, imitated scribal forms but later gave way, in the seventeenth century, to the more legible roman font. Some of these early styles were difficult to read, even for the highly literate. This was the case with early legal texts in England which were printed in “black letter”. The use of the Roman font did not become common until the early seventeenth century. For an example of “black letter” see Totell’s published Year Books or William Fulbecke  Directive or Preparative to the Study of the Lawe (Thomas Wight, London 1600). The title page and introduction are in Roman. The text is in black letter. The difference is immediately apparent. On the other hand Michael Dalton The Countrey Justice (Society of Stationers, London 1613) is printed in Roman and is more easily readable than the black letter font.

[11] Note however the use by Tottel of mixed sheets from different printings. J.H. Baker “The Books of the Common Law” in Lotte Hellinga and J.B. Trapp (eds) The Cambridge History of the Book in Britain (Vol 3) (Cambridge University Press, Cambridge 1999)    p. 427 et seq. Thus some of his printings were compilations.  This suggests that the economics of printing may have contributed to circumstances that might have challenged the uniformity that standardisation required.

[12] Eisenstein The Printing Press above n. 4 p 80 et seq

[13] Ibid. p. 81.

[14] If errors were not detected print could facilitate the dissemination of false, incorrect or misleading information, despite Eisenstein’s claims that such problems could be met by error trapping which presupposed subsequent printings.

[15] The presence of errata did not guarantee their use. See for example the manual amendment by Lambarde to the 1569 printing of Bracton Sheffield University Library RBR Q 347(B) Folio 115V. The errata addressed the very mistake that Lambarde noted in hand,

suggesting that he had read the text without noting the errata.

[16] The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912. For a further example see Douglas Osler “Graecum Legitur: A Star is Born” (1983) 2 Rechtshistorisches Journal 194 which demonstrates the falsehood perpetuated by the founder of legal humanism, Alciatus, that he had consulted non-existent manuscripts as well as a surviving manuscript of the Digest (the Florentine Codex) when in fact he had not.

[17] Eisenstein The Printing Press above n.4 p. 103.

[18] The issue of error was a matter which had an impact upon the reliability of printed legal material.

[19]  Eisenstein The Printing Press above n. 4 p. 107 et seq.

[20] Cited by J.A. Cochrane Dr Johnson’s Printer:The Life of William Strahan (Routledge and K Paul, London, 1964)  p.19 at n.2.  See also Eisenstein, The Printing Press above n.4 p. 112.

[21] (John Rastell, London, 1531) STC 9521.

[22] Tessa Watt Cheap Print and Popular Piety: 1550 – 1640  (Cambridge University Press, Cambridge, 1991) p. 7. In 1600 52% of East Anglian tradesmen and craftsmen could sign their names compared with 80% in London.  By the 1640’s roughly 30% of adult males in rural England could sign their names. David Cressy Literacy and the social order. Reading and writing in Tudor and Stuart England (Cambridge, Cambridge, 1980) p. 72. The upper classes, both nobility and gentry, men and women were on the whole literate in both English and French and often in Latin as well. John Feather A History of British Publishing (Croom Helm, London,  1988) p. 20.

[23] his does not automatically mean that there was understanding of some of the technical language. The ability to read does not necessarily import deep understanding.

[24] I.S. Williams, “He Creditted More the Printed Booke – Common Lawyers Receptivity to Print 1550 – 1640”  (2010) 28 Law and History Review 38.

[25] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[26] I acknowledge that this is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination. I brief, the argument is this. Sir Thomas Egerton’s Discourse on the principles of statutory interpretation (S.E. Thorne (ed) A Discourse on the Exposition & Understanding of Statutes with Sir Thomas Egerton’s additions (Selden Society, London, 1942) was written in the middle part of the sixteenth century and heralded what was to become an important aspect of legal analysis – legal hermeneutics or the analysis of the language of a text – which depended first upon the textualisation of the law and secondly upon the availability of textualised law in multiple copies. Thorne states that the history of statutory interpretation starts in the sixteenth century and after the Henry VIII’s legislative outburst accompanying the break with Rome. Print in and of itself seems to have had little causative effect upon legislative and proclamatory activity of the Henrician Reformation, nevertheless the new technology was employed as a tool to disseminate the royal message. Thus detailed, textualised law, printed by the holder of the Royal Printing monopoly, became available in multiple copies enabling a greater consideration of the legislation and, importantly, its purpose as stated in the preamble. Assuming an absence of print, and assuming the historical progress of the Henrician Reformation with Cromwell’s legislative programme, it is possible that hermeneutics may have developed – probably more slowly – and it would have relied on manuscript materials.  It must be remembered that some instances of conflict between print and manuscript copies of legislation were resolved in favour of the latter but in either event the text of the manuscript or in print required scrutiny.  Print made this process easier for the lawyers and Judges in that the wider availability of printed material allowed for closer and lengthy engagement with the text.  Thus it can be suggested that print contributed to the development of hermeneutics although that development may have been one of the unintended consequences of the State’s interests in the printing of statutes.

Whilst print may not have a direct impact upon changes in the nature of statutes themselves it may have enabled them and it certainly must have had an impact upon the distribution, consideration and analysis of statutory material, providing a fresh context within which statutes might be considered. Even although there may have been occasions where a manuscript version of a text was preferred to a printed one, the fact that such a comparison was taking place demonstrates that printed material was occupying an important place in the spectrum of legal information.

[27] Frederick Schauer & Virginia J. Wise “Nonlegal Information and the Delegalization of Law” (2000) 29 J Legal Stud 495 at pp. 512, 514

[28] Hence I have redefined it – see below under Eponential Dissemination

[29] Jim Dator, “Judicial Governance of the Long Blur” (2000) 33  Futures page 181 – 197

[30] For an examination of the changes in the legal profession and a possible future see Richard Susskind The End of Lawyers:Rethinking Legal Services (Oxford University Press, Oxford 2008) and Tomorrow’s Lawyers (Oxford University Press, Oxford 2013).

[31] In fact a misquote that has fallen into common usage from the movie Field of Dreams (Director and Screenplay by Phil Alden Robinson 1989). The correct quote is “If you build it he will come” (my emphasis) http://www.imdb.com/title/tt0097351/quotes (last accessed 4 November 2013)

[32] Vannevar Bush “As We May Think” The Atlantic, 1 July 1945. http://www.theatlantic.com/magazine/archive/1945/07/as-we-may-think/303881/?single_page=true

[33] For further discussion, especially in the context of reading see Maryanne Wolff Proust and the Squid: The Story and Science of the Reading Brain (Harper Collins, New York 2007); Neil Postman The Disappearance of Childhood  (Vintage\Random House  New York 1994). Walter Ong Orality and Literacy: The Technologising of the Word (Routledge, Oxford 2002). Neil Postman Amusing Ourselves to Death: Public Discourse in the Age of  Showbusiness (Penguin Books, New York 1986); Sven Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA, 1994); Sven Birkerts “Resisting the Kindle” (The Atlantic March 2009). and my discussion in “Why Do Jurors Go On-Line” The IT Countrey Justice  July 27 2012  https://theitcountreyjustice.wordpress.com/2012/07/27/why-do-jurors-go-on-line/ (last accessed 7 November 2013)

[34] See for example Neacsu, Dana, “Google, Legal Citations, and Electronic Fickleness: Legal Scholarship in the Digital Environment” (June 2007). Available at SSRN: http://ssrn.com/abstract=991190 or http://dx.doi.org/10.2139/ssrn.991190; Rumsey, Mary “Runaway Train: Problems of Permanence, Accessibility and Stability in the Use of Web Resources in Law Review Citations” (2002) 94 Law Library Jnl 27; Susan Lyons “Persistent Identification of Electronic Documents and the Future of Footnotes” (2005) 97 Law Library Jnl 681; Zittrain, Jonathan and Albert, Kendra, Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations (September 21, 2013). Available at SSRN: http://ssrn.com/abstract=2329161 or http://dx.doi.org/10.2139/ssrn.2329161  Adam Liptak “In Supreme Court Opinions, Web Links to Nowhere” New York Times 23 September 2013 http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html?smid=re-share&_r=1&  (last accessed 22 October 2013) See also the discussion below under the headings “Information Persistence”,” Format Obsolescence” and the “Non-coherence of Information.”

[35] Ibid. Neacsu

[36] Ibid. P. 12 – 15

[37] See David Harvey “Using Digital Tools to Give Reasons” 2011 Paper presented at the Courts Technology Conference 2011;  The IT Countrey Justice June 8 2012 https://theitcountreyjustice.wordpress.com/2012/06/08/using-digital-tools-to-give-reasons/ (last accessed 11 November 2013) http://www.scribd.com/doc/96370049/The-Digital-Decision-Paper (last accessed 11 November 2013)

[38] Which may arise for any one of a number of reasons, many of which involve relocation of information rather than its total removal.  For a counter-point to link rot see the discussion on Exponential Dissemination below.

[39] Although for the other side of this coin see the quality of format obsolescence

[40] The recent disclosures made by the soi-disant group “Roastbusters” on Facebook about their sexual exploits with young women is an example of dissociative enablement. In the “rea; word” they may have communicated with a limited number of individuals within their peer group. Now they communicate their behaviour – and the consequent embarrassment of their victims – to the world. For example see “Roast Busters: Over 63k call for PM to take action” NZ Herald 11 November 2013 http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11154984 (last accessed 11 November 2013.) This article is one of a large number published since the story broke on TV3 news on 3 November 2013.

[41] See William Bernstein Masters of the Word (Atlantic Books, London 2013).  Especially chapter 8 “The Comrades Who Couldn’t Broadcast Straight” and pp.263 and following.

[42] Information flow in communication is important in analysing the impact of information. One of the most common errors in descriptions of the Internet is the suggestion that one should “go to” a certain address. The reality is that the enquirer goes no where. The information in fact flows in a direction opposite to that suggested in that the website is downloaded to the enquirer’s computer. This is perhaps an obvious an particularly egregious example of a misunderstanding of information flows especially within the technological sense. The practice of law is entirely about information flows and is an important element in determining, for example, the culpability of a juror for extra-curial communication. See “The Googling Juror: The fate of the Jury Trial in the Digital Paradigm” https://theitcountreyjustice.wordpress.com/2012/09/13/the-googling-juror-the-fate-of-the-jury-trial-in-the-digital-paradigm/ (last accessed 5 November 2013)

The “information flows” approach was developed by Professor Ian Cram. See Ian Cram “Twitt(er)ing Open Justice? or threats to fair trials in 140 characters) – A Comparative Perspective and A Common Problem”(Unpublished paper delivered at Justice Wide Open Conference, City University London, 29 February 2012) seehttp://www.city.ac.uk/centre-for-law-justice-and-journalism/projects/open-justice-in-the-digital-era (lastaccessed 4 April 2012). I am indebted to Professor Cram for providing me with his paper that he presented at the City of London Conference and for his analysis of information flows. The full paper may be found athttp://www.scribd.com/doc/97591724/Justice-Wide-Open-Ian-Cram-Twitt-er-ing-Open-Justice (last accessed 23 August 2012)

[43] The disclosure of Mayor of Auckland Len Brown’s affair with Bevan Cheung broke not via  newspapers, radio or television but via the Whaleoil blog – http://www.whaleoil.co.nz/2013/10/exclusive-len-brown-sordid-affair-run-town-hall/#axzz2jhkdzHRB (last accessed 5 November 2013)  Similarly the disclosure in October 2012 that Ministry of Social Development information kiosks were insecure was researched and exposed by Kenneth Ng on the Public Address blog http://publicaddress.net/8246 (last accessed 5 November 2013)

[44] This demonstrates that many of the qualities of the Digital Paradigm are interrelated.

[45] Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ in Stephen Mason (gen ed) Electronic Evidence (3rd edn, LexisNexis Butterworths, London 2012) 2.05.

[46] Ibid.  2.06.

[47] [2004] 3 NZLR 748 at [110].

[48] E-Discovery demonstrates the interrelationships of Digital Paradigm qualities in that one of the basic problems within the discovery process is not only the “non-coherence” of information, but the volume of information spread across a vast array of platforms.

[49] Marshall McLuhan, Understanding Media above n.1

[50] File | Options | Trust Center | Trust Center Settings | File Block Settings allows the user to change the settings to enable opening files in earlier formats. Note that, if the user wants completely unrestricted access to these files, he or she needs to clear the check boxes for them so that whichever of the radio buttons is selected at the bottom does not apply to them. Alternatively, the user can leave them checked and opt to allow opening them in Protected View, with or without allowing editing.

[51] Some converters no longer work in new operating system environments. For example, converters designed for the Windows 32-bit system may be rendered obsolete by virtue of the fact that Windows 7 64-bit uses a different file path structure and registry keys.

[52] Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember. (Atlantic Books, London 2010). See also Nicholas Carr “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[53] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

[54] Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[55] Above n. 41 esp at p.323 and following.

[56] Ibid. P. 323-4.

[57] Ibid. p. 324.

[58] Ibid p. 324-6

[59] Sometimes referred to as “The Frankenstein Complex”

[60] See above for some of the qualities of digital information technologies.

[61] Jim Dator “Judicial governance of the Long Blur,” Futures , Vol. 35, No. 1, January 2001; Frederick Pollock and Frederick William Maitland The History of English Law Vol 1 2^nd ed. (Cambridge University Press, Cambridge 1968) p. 460

[62] Ethan Katsh The Electronic Media and the Transformation of Law New York Oxford University Press 1989

[63] Ibid. page 12

[64] Michael T Clanchy – From Memory to Written Record: England 1066 to 1307 (Oxford, Blackwell, 1993).

[65] T Ellis Lewis, “History of Judicial Precedent”  (1930) 46 Law Quarterly Review 207.

[66] William Markby “Elements of Law” in Readings on the History and System of the Common Law in R Pound and T F T Plunknett (eds) (Rochester, NY; Lawyers Co-Operative 1927) p.125.

[67] Entick v Carrington [1765] EWHC KB J98; 19 Howell’s State Trials 1029 (1765).

[68] Quoted in Holdsworth, William, Some Lessons from our Legal History New York, Macmillan, 1928, p.18

[69] Schauer, F. Precedent (1987) 39 Stanford L.R. 571, 595 – 60.

[70] Some Lessons From Our Legal History above n. 67  page 19.

[71] Legal Realism: Its Cause and Cure, (1961) 70 Yale Law Journal 1037.

[72] Diana Botluck, Evaluating the Quality of Web Resources  http://www.llrx.com/columns/webquality.htm  published 3 April, 2000 (last accessed 11 November 2013).

[73] Ibid.

[74] Katsh, above n. 62.

[75] Robert C Berring “ Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information” (1994) 69 Wash L. Rev. 9 at pp. 11 and 14

[76] Levinson, Paul Digital McLuhan – A Guide to the Information Millennium (Routledge, London, 1999). According to McLuhan’s laws of media, an environment obsolesces or reverses at the moment of fever pitch. The information environment, during its moment of superabundance, becomes obsolescent. It has passed into cliché, if we can see it at all. “’When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.” Marshall McLuhan and Quentin Fiore The Medium is the Massage : An Inventory of Effects (Gingko, Berkeley 2001)

[77] Ibid.  p.176 – 177

[78] Ian Williams “He credited more the printed booke” above n. 24

[79] The Bluebook: A Uniform System Of Citation (Columbia Law Review Ass’n et al. eds., 17th ed.

2000). See also the reasons for an early reluctance to cite Internet materials including a lack of confidence in their reliability and accuracy. Many Web sites are transient, lack timely updates, or may have had their URLs changed. Thus many Internet sources .. . did not consistently satisfy traditional criteria for cite-worthiness. See Colleen Barger “On the Internet Nobody Knows You’re A Judge: Appellate Court’s Use of Internet Materials” (2002) Jnl Appellate Practice and Process 417 at 425.

[80] Ibid. 19^th ed.

[81] Ethan Katsh Electronic Media and the Transformation of Law: Law in a Digital World New York, Oxford University Press, 1995. Richard Susskind, The Future of Law: Facing the Challenges of Information Technology (Oxford University Press Oxford 1996).

[82] Moore’s law is the observation that, over the history of computing hardware, the number of transistors on integrated circuits doubles approximately every two years. The law is named after Intel co-founder Gordon E. Moore, who described the trend in his 1965 paper – Gordon Moore “Cramming More Components onto

Integrated Circuits” http://www.cs.utexas.edu/~fussell/courses/cs352h/papers/moore.pdf (last accessed 5 November 2013) His prediction has proven to be accurate, in part because the law is now used in the semiconductor industry to guide long-term planning and to set targets for research and development.

[83] Mary Rumsey and April Schwartz “”Paper vs Electronic Sources for Law Review Cite Checking: Should Paper be the Gold Standard” (2005) 97 Law Libr J 31 at p.42.

[84] Ibid. At 46.

[85] See the comments of Holdsworth and Gilmore above notes 69 and 70.

[86] Richard Susskind The Future of Law: Facing the Challenges of Information Technology (Oxford University Press, Oxford 1996)

[87] Ibid. pge 91

[88] “Some Lessons from our Legal History” op. cit  page 22

[89] Katsh, Ethan The Electronic Media and the Transformation of Law  New York; Oxford University Press; 1989 p.46

[90] The terms “digital native” and digital immigrants” were first used by Marc Prensky in an article which suggested that students who were born into the Internet Age were no longer the people the educational system was designed to teach Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf; http://www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf  (last accessed 23 February 2012).  For a brief introduction the the development of Presnsky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012)

Prensky spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality. Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

[91]   Charles Clark ‘The Answer to the Machine is in the Machine’, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).Charles Clark

[92] F Allan Hanson “From Key Numbers to Key Words: How Automation Has Transformed the Law” (2002) 94 Law Libr J 563 at 583.

On-Line Speech Harms

A Sketch of Issues to be Considered in Legislating for the Digital Paradigm

This is a paper that was presented to the Bullying, Young People and the Law Symposium held under the auspices of the Allanah and Madeline Foundation in Melbourne 18 – 19 July 2013. It was part of a New Zealand contribution to the symposium by Cate Brett of the Law Commission, Martin Cocker of Netsafe and the author. The presentation accompanying this paper may be found here.

Introduction

This paper argues that legislating for behaviour in the digital environment raises unique issues. Whereas legislating for the physical world has certain architectural and physical constraints, such constraints may not be present in the digital space, or may be so paradigmatically different that new considerations need to be employed. This paper considers firstly the qualities and properties of digital technologies that provide challenges for conventional legal processes. It then goes on to consider the New Zealand Law Commission proposals to deal with on-line speech harms and any limitations on the effectiveness of those provisions. It concludes with some thoughts about the application of values developed within one paradigm to those who live in another.

The Digital Paradigm

Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[1] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

But there is more to this discussion than the content that media convergence enabled by digital technologies provides.  Content, as McLuhan said, is  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” [2] It is as important to understand how it is that digital information technologies work. We need to understand the underlying qualities or properties of digital technologies to understand the way in which they drive our information uses, activities and behaviours. Permit me a brief digression while I offer an example.

Information Technology Properties – The Printing Press

In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified six fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s ninety-seven arguments around Germany in the space of two weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. Dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[3] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[4]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Print made information more available to ordinary people who could read.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[5]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[6]

From all this it would be fair to ask –  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

The Medium Is….

Once there is a recognition of the fact that there are properties that underlie an information technology that influence the way in which we address content, and that will govern or moderate information activities,  we begin to understand what Marshall McLuhan meant by his aphorism “The Medium is the Message.” Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

The Properties of Digital Communications Technologies

Many of the properties that Eisenstein identified for print are present in digital technologies. Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.

The properties that I identify are not an exclusive list. The identification of the properties or qualities of digital information technologies is very much a work in progress. But these are the ones that occur to me. Some of them have already been reflected in the discussion that has preceded and I give a very brief description of what each property means. A more detailed analysis has yet to be developed.

• Persistence – summed up in the phrase “the document that does not die” – that once information is on the Internet it is more likely than not to remain there.

 Continuing change or what you could refer to as the disruptive element – continuing disruptive change is a characteristic of the digital space – the idea of a “breathing space” between times of accelerated change no longer exists. This quality is linked to “permissionless innovation” below.

 Delinearisation of Information – in essence, the effect of hypertext links that allow and enable thinking to follow other than a strictly logical sequence, but to branch of into related (sometimes tenuously related) areas of information

 Dynamic information – the ability to cut, paste, alter, change and modify text once it has been placed in digital format – exemplified by the ability of on-line newspapers to update stories or significantly alter them as new information comes to hand

 Dissociative enablement,  – the ability to sit behind a screen and say and do things that one would never contemplate face to face or in “meat space”

Permissionless innovation – you don’t need to ask to put a new tool or protocol on the Internet. Sir Tim Berners-Lee didn’t need anyone’s permission to bolt the World Wide Web onto the Internet; nor did Mark Zuckerberg with Facebook, Sergey Brin and Larry Page with Google, Jeff Bezos with Amazon or Jack Dorsey with Twitter. If you build it they will come sums up this quality.

Availability – information comes to the user. The print paradigm localised book based information in a library or a bookshop. The Internet brings directly information into the home.

Participation – this is a very wide concept which includes information and file sharing as well as the ability to comment on blog sites, post photos on Facebook, engage in Twitter exchanges, participate in IRC chatrooms and break new stories via a blog.

Searchability  is related to the next quality but is the first step in the information recovery process – a common feature of the Internet before it went commercial and thereafter has been to make some sense of the vast amount of information that is available. Thus from Gopher to Google the quest for making information available has been a constant, and it enables users to find what they are looking for.

Retrievability – and once the successful search has been carried out, the information is available and can be readily and immediately obtained – associated with information availability above.

This means that the information expectations of Digital Natives have been shaped and moulded by these qualities. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (Digital Immigrants) or those of my generation (Digital Aliens). Thus any solution to on-line problems must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours. The solution must also recognise another McLuhan aphorism – we shape our tools and thereafter our tools shape us.[7]

This of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[8]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[9] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[10] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[11] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[12]

Looking at Solutions

Thus if we seek a solution to some of the problems that involve Internet-based behaviour we must recognise these qualities and impacts of the digital communications technologies that underlie these behaviours. For example any solution must recognise:

• The time factor – in “internet time” information moves faster than it does in the real world
• Information is dynamic and spreads “virally”
• “Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
• Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
• Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral.
• Restrictions on a free and open internet must be minimal.

The New Zealand Solution

The New Zealand solution set out in the Digital Speech Harms paper from the Law Commission takes a two-pronged approach. One involves the creation of a new offence. The other involves a fast-track solution of a civil nature involving the creation of a Communications Tribunal.

A New Offence

The Law Commission considers that causing harm by the use of a communications device should be criminalised. The first thing that must be recognised is that the use of communications device is not criminalised, nor may this be seen as an attempt to regulate the Internet. What is being addressed is a behaviour involving the use of a communications device that causes harm to another.

The proposed language of the offence is as follows:

Causing harm by means of communication device

(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of any communication device a message or other matter that is—

 (a) grossly offensive; or

 (b) of an indecent, obscene, or menacing character; or

 (c) knowingly false.

 (2) The prosecution must establish that—

 (a) person A either—

 (i) intended to cause person B substantial emotional distress; or

 (ii) knew that the message or other matter would cause person B substantial emotional distress; and

 (b) the message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and

 (c) person B in fact saw the message or other matter in any electronic media.

 (3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.

(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including—

 (a) the extremity of the language used:

 (b) the age and characteristics of the victim:

 (c) whether the message or other matter was anonymous:

 (d) whether the message or other matter was repeated:

 (e) the extent of circulation of the message or other matter:

 (f) whether the message or other matter is true or false:

 (g) the context in which the message or other matter appeared.

 (5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

(6) In this section, communication device means a device that enables any message or other matter to be communicated electronically.

The message set out in subsection (1) has to pass a very high threshold. Similarly the intention test in subsection (2) is high and the criteria in subparagraphs (a) – (c) are conjunctive. Each one must be proven to the criminal standard. Subsection (4) sets out matters that a Court may take into account, but these criteria are not exclusive.

One matter that must be taken into account is that the section would have to be interpreted and applied in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA). Now the section as it stands criminalises a certain quality of speech, thus engaging a consideration of the freedom of expression right guaranteed by s. 14 of NZBORA. That must take into account issues of a justified limitation upon the freedom of expression right. In my view the application of NZBORA would necessarily result in a very cautious approach by a Court. The evidence of the offending would have to be clear and unequivocal and could not really apply to a trivial matter.

A problem that arises with prosecutions for such an offence is the nature of the legal process which rarely matches “Internet time” and the fact that the section does not allow for the removal of any offending material, thus allowing the persistence of the information. The section addresses the behaviour but the message may still remain, preserved on the Internet.

The Communications Tribunal

The proposal for a Communications Tribunal, and for the powers and remedies that Tribunal may bring to play could well address some of the qualities of the digital environment, and possibly more effectively than a criminal prosecution, which, in my view, would be reserved only for the most extreme cases.

The Communications Tribunal

a) would have a limited jurisdiction

b) could provide limited and specific remedies

c) would deal with content and not criminality

d) would operate “on the papers”

e) would be a remedy of last resort after a filtering process has been carried out by the Approved Agency

 

Communications Principles

On the face of it, the Communications Tribunal has some significant powers which, at first glimpse, interfere dramatically with freedom of expression. The approach by the Tribunal must be within the context of Communications Principles proposed by the Law Commission. These are:

Principle 1

A communication should not disclose sensitive personal facts about an individual.

Principle 2

A communication should not be threatening, intimidating, or menacing.

Principle 3

A communication should not be grossly offensive to a reasonable person in the complainant’s position.

Principle 4

A communication should not be indecent or obscene.

Principle 5

A communication should not be part of a pattern of conduct that constitutes harassment.

Principle 6

A communication should not make a false allegation.

Principle 7

A communication should not contain a matter that is published in breach of confidence.

Principle 8

A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm

Principle 9

A communication should not incite or encourage another person to commit suicide.

Principle 10

A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.

Matters that the Tribunal Would Have to Consider

In considering an application for relief the Tribunal would have to take into account the following:

(a) the content of the communication, its offensive nature, and the level of harm caused by it:

(b) the purpose of the communicator in communicating it:

(c) the occasion, context, and subject-matter of the communication:

(d) the extent to which the communication has spread beyond the original communicator and recipient:

(e) the age and vulnerability of the complainant:

(f) the truth or falsity of the statement:

(g) the extent to which the communication is of public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.

The Law Commission also emphasised that in exercising its functions, the Tribunal should have regard to the important of freedom of expression. Thus an analysis pursuant to the provisions of NZBORA would have to be undertaken.

The Orders that the Tribunal Might Make

(a) an order requiring that material specified in the order be taken down from any electronic media:

(b) an order to cease publishing the same, or substantially similar, communications in the future:

(c) an order not to encourage any other person to engage in similar communications with the complainant:

(d) a declaration that a communication breaches a communication principle:

(e) an order requiring that a factually incorrect statement in a communication be corrected:

(f) an order that the complainant be given a right of reply:

(g) an order to apologise to the complainant:

(h) an order requiring that the author of a particular communication be identified.

These orders or parts of them may apply to the following:

(a) the defendant:

(b) an internet service provider:

(c) a website host:

(d) any other person, if the Tribunal considers that the defendant is encouraging, or has encouraged, the other person to engage in offensive communication towards the complainant.

Transparency would be ensured in that the Tribunal must publish its decisions and the reasons for them. This is necessary because if there are to be interferences with freedom of expression the reasons for such interference and the extent thereof should be published and made known to counter any suggestion of secret interference with freedom of speech.

As proposed the Communications Tribunal would have the following advantages in dealing with on-line speech harms and at the same time recognise some of the disruptive qualities of the digital paradigm:

a)  it would deal only with the most serious types of on-line speech harm, in that the Approved Agency would filter and deal with the majority of complaints.

b) It would provide a relatively swift response which would accord with “internet time” and at least attempt to mitigate some of the damage that could be done if the material in question was or going or was likely to go viral. Having said that, the persistence quality of information on the Internet may well provide an element of frustration, but responding to the source of the speech harm is a significant first step.

c) it would have an “on the papers” hearing which would obviate the need for conducting a full hearing with parties present, and which would have to fit in around other Court work. This said, with modern technology such as Skype it is possible that a “distributed hearing” where the participants would be other than in the Court building may be possible. New Zealand has specific legislation that allows this.[13]

d) it could provide a remedy by way of a take-down order but it should be noted that power would have to be exercised having regard to the freedom of expression provisions in NZBORA, and the correct analysis based on a proportional approach would have to be undertaken.

e) an order of the Tribunal would constitute a Court order which would receive recognition from providers such as Google or Facebook and thereby the removal of offending content could be expedited.

The Present State of the Play

The report has been received by the Minister.

She has indicated that the recommendation for a Communications Tribunal will not be adopted.

The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court

Some of the issues that may arise and should be addressed as the policy develops into a Bill might include

a) lack of specialist expertise in the field of digital communications law on the Bench and the need for specialised training

b) potential procedural delays if Communications complaints are subsumed as part of the normal Court process – a “fast track” may need to be considered

c) variation or possible lack of consistency in the application of principles and the types of orders that may be made

d) whether or not a process may be developed which will take into account the qualities and realities of the digital paradigm and which recognise that the nature of Internet based communication is fundamentally different and potentially far more damaging than conventional bullying “speech”.

One thing is clear and it is that the activities of the Court in this area will be carefully scrutinised by lawyers, free speech advocates, Internet freedom advocates and the community in general.

A Cautionary Conclusion

There are some who follow the view of Edmund Burke – that each generation has a duty to succeeding generations. Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.

The problem is this – in a changing communications paradigm should digital immigrants tell digital natives how to live their lives in the digital environment?

The IT Countrey Justice

July 2013

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[1] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover “Paratexts” (1992) 44 Stanford Law Review 509.

[2] Marshall McLuhan Understanding Media: The Extensions of Man Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[3]The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[4] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[5] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[6] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[7] Marshall McLuhan Understanding Media: The Extensions of Man  above n. 2.

[8] (Atlantic Books, London 2010). See also Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[9] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

 

[10]Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[11] Sometimes referred to as “The Frankenstein Complex”

[12] See above for some of the qualities of digital information technologies.

[13] The Courts (Remote Participation) Act 2010