Digitization vs Privacy: A ZambiaLII Presentation at the Southern Africa Chief Justices Forum (SACJF)

Digitization versus Privacy.pdf1.4 MB
SACJF Meeting Zambia 2013
The Southern African Chief Justices’ Forum’s (SACJF) annual conference took place in Livingstone, Zambia from 2nd to 3rd August, 2013.   The theme for this year's conference was "The quest for an efficient judicial system as a key to democratic and economic development." 
The purpose of the conference, as the hostess acting Chief Justice Lombe Chibesakunda noted, was for participants ‘to share experiences and discuss how they have dealt with the same problems in their jurisdictions.’
For a full overview of the program and presentations, see http://www.sacjf.org/index.php?page=Programme-Overview
The Southern African Institute for Policy and Research (SAIPAR) was invited to speak on the topic Digitization versus Privacy. SAIPAR is the current host of the Zambia Legal Information Institute (ZAMLII). Drs. Marja Hinfelaar and Pamela Sambo, representatives of SAIPAR and authors of this blog, made the presentation.
It was discussed that access to digital information is becoming commonplace and that this has consequences for all organisations and institutions, including the judiciary. At a practical level, it means that institutions have to digitize information that is only available in hard copy. There are good reasons to do so: it is good for preservation, as materials are made searchable and it encourages institutions to organize their documents for later use. The documents of public institutions ought to be a public good and the internet provides that opportunity.
It was emphasised that having open access to information on the web has far reaching consequence. In line with open access, it was discussed more specifically that access to legal information is very important.
“Rapid advances in technology have challenged courts to balance the interests between providing public access to their records and protecting the private information within those records when disseminating them electronically.” (Sudbeck, 2006)
Examples were provided of judgments and media reports which have blatantly breached the right to privacy, i.e. the mentioning of names of minors in a defilement case or the HIV/AIDS status of a partner in a divorce case. The consequences of such private information floating on the internet are innumerable for the individuals concerned, as it can affect their future relationships, employment opportunities, etc. Moreover, it was observed that this might lead to people avoiding the courts of law because of fear that private details can be disclosed to society at large. 
There was consensus on the urgent need for guidelines, implementation and enforcement of privacy rules in the dissemination of judgments. Since the judiciary is the source of all court information, SAIPAR suggested that this where privacy protection should start. It was pointed out that privacy guidelines and anonymisation protocols are by and large not applied in the region, with the exception of a few countries. It is notable that information knows no boundaries; as we share information, we have to ensure that privacy protection mechanisms are enforced in neighbouring judicial institutions.
The presentation concluded by reiterating one of SACJF‘s objectives which encourages the publication and dissemination of court judgments and the use of information technology. A debate was initiated with the audience by asking three questions:
  • Is there an actual consensus in the region to provide open access to legal information?
  • Information knows no boundaries: Is there a pressing need to develop guidelines across the region?
  • Will the Southern African Chief Justices’ Forum provide leadership to protect privacy in society?
In the discussion that ensued, most of the regional Chief Justices were agreeable that something had to be done about the nature of information that eventually ends up on the court record. Some examples were given relating to experiences of breaches of privacy. Other personal accounts were given on the consequences of failure to safeguard private information in the course of legal proceedings, notably divorce cases. The media was singled out for sensationalist reporting. Generally, the Forum was in agreement that digital access is irreversible and so the Judiciary has to find a way of adapting to it. The Chief Justices saw a clear need to harmonize privacy rules across the southern African region.
Dr. Marja Hinfelaar, Director of Programs and Research at SAIPAR and Dr. Pamela Towela Sambo, Legal Consultant at SAIPAR