Our Voices

Robert F. Kennedy Human Rights hosts panel on the future of Strategic Litigation for the protection of Digital Rights

On the sidelines of the 2022 Forum on Internet Freedom in Africa, Robert F. Kennedy Human Rights played host to an experts’ panel on the future of strategic litigation for the protection of digital rights. The panel was organized in collaboration with Unwanted Witness Uganda and the International Justice Clinic at the University of California Irvine School of Law.

The Forum on Internet Freedom in Africa (FIFAfrica) is an annual flagship event of the Collaboration on International ICT Policy in East and Southern Africa (CIPESA), which convenes a broad spectrum of actors from across the internet governance and digital rights sector in Africa and beyond. Since 2014, the forum has provided a unique platform to “interrogate and discuss research, policy interventions, gaps, and opportunities across the continent” relating to digital rights. This year’s forum was attended by experts from 38 countries and featured 21 topic tracks including access to information, artificial intelligence, business and human rights, cybercrime and strategic litigation for digital rights.

The panel on the future of strategic litigation for the protection of digital rights examined the successes, challenges, and lessons learned from digital rights litigation before domestic, regional, and international mechanisms, and it highlighted areas for further litigation. In his framing remarks, Ikechukwu Uzoma, staff attorney at Robert F. Kennedy Human Rights, noted that, despite the successes of digital rights litigation, attacks and threats persist. “The last decade has witnessed a flurry of repressive legislation that seeks to suppress freedom of expression and opinion. New trends of regimes and laws mandating SIM card registrations and enrollment in digital ID programs with limited safeguards, illegal surveillance, use of malware to target journalists, activists and political opposition.”

Taking the conversation further, Dorothy Mukasa, Chief Executive Officer at Unwanted Witness Uganda, highlighted the need for concerted efforts by civil society and other actors to ensure full implementation of decisions from digital rights cases. “Enforcement and implementation of decisions is currently low, and this waters down the impact of the courts on the continent. We must continue to build multi-sectoral partnerships — not only among civil society, but also with governmental agencies, regional bodies, special rapporteurs, researchers and universities. This is particularly important because of the protracted, lengthy, and costly nature of strategic litigation that makes it exceedingly difficult for a single entity to manage in isolation.”

Unwanted Witness is currently litigating multiple digital rights cases, including the case challenging the constitutionality of the Digital ID program in Uganda.

Thobekile Matimbe, partnerships and engagement manager at Paradigm Initiative, addressed the importance of utilizing judicial and quasi-judicial mechanisms for advocacy and litigation around digital rights issues. Noting that certain regions of the continent do not have access to regional or sub-regional mechanisms, Matimbe stressed that advocates have continued to use domestic courts to advance digital rights objectives.

“Advocacy remains an important tool that must accompany litigation,” Matimbe said. “Even where a particular case is not successful, there is still a growing awareness of digital rights issues and violations. Increasing awareness remains an important objective in and of itself for capacity building on digital rights issues.”

Luis Fernando Garcia, executive director and co-founder of Red en Defensa de los Derechos Digitales (R3D) in Mexico, shared strategies for sustainable advancement of positive digital rights jurisprudence. He explained that R3D has adopted a piecemeal approach, given the complexity of digital rights cases.

“The technical complexity of the digital rights cases could intimidate or alienate judges,” he said. “Even where issues are not necessarily complex, technology and digital rights vocabulary could be alienating. Litigators must be tactical about how the case/information is presented to the presiding judge. It is Important to identify parts of the case that may be easier to present to the Court and then build on the successes of this case in future litigation.” Reflecting on the impact of collaboration, Luis Fernando stressed that “reliance on expert reports and academic literature that can substantiate the digital rights claims has helped in advancing arguments in Court.”

In closing, Sofia Jaramillo — Robert F Kennedy Human Rights’ senior staff attorney for civic space — addressed the role of the United Nations treaty body system in digital rights litigation. Jaramillo noted that “while the Individual complaint procedure of treaty bodies presents an opportunity as a tool to advance digital rights, litigators have not approached the mechanisms with digital rights cases.”

However, she advised that “litigators should take benefit of the well-researched reports, general comments, and outcome reports following Universal Periodic Reviews; they provide useful reflections on the digital rights issues.” Jaramillo identified five key areas for future digital rights litigations: social media monitoring, internet shutdowns, surveillance of human rights defenders and journalists, barriers to internet access, and data protection.

The panel underscored the importance of synergy and collaboration around digital rights litigation and the benefit of peer exchanges between advocates and litigators in Africa and Latin America.

Robert F Kennedy Human Rights is committed to fostering deep collaboration between civil society in both regions in support of strategic litigation before regional and subregional mechanisms for the protection of digital rights in particular and civic space in general. We are grateful to our partners in Africa and Latin America for their continued engagement.