This is a notable entry from the Justis International Law & Technology Writing Competition 2020 in the category of Access to justice and technology, by Katie Brand of Monash University. Find out more about the competition, the shortlist and winning articles here.
Equal access to justice has long been an axiom of the law. Equal access to information has been the gift of the technological revolution. But just as the industrial revolution resulted in the disenfranchisement of the craft class, so too does the technological revolution risk the fractionation of the analogue class from the legal system. While the protean concept of ‘law and technology’ offers both opportunity and uncertainty, equal access to justice is a promise of universal legal assistance decoupled from the prospect of a digital divide. How a technically advanced legal system can avoid entrenching marginalization and meet this central concern of the rule of law has been a recurrent theme in legal discourse for two decades. Whilst today, judges, lawyers and legal academics continue the debate, technology adventitiously expands across and embraces the world’s justice systems. So what of tomorrow’s justice system? While no course has yet been definitively charted or universally agreed, history offers three key insights into the nature of the journey: change is inevitable, transition should be gradual, and reform responsive to the unimagined challenges of the gig economy.
The technological revolution is inevitable
Digitisation, technology and the Internet are informing justice systems globally. Until recently, back-office digitization was ubiquitous. With court infrastructure now largely migrated online, justice systems are poised for front-of-house transformation, such as the nascent development of online courts and online dispute resolution. The United Kingdom is in the vanguard with online proceedings comprising part of a £700 million modernisation plan. Australia and Canada are improving online dispute resolution portals. Superficially, the injection of technology into legal systems has had a positive impact on access to justice. For example, electronic filing simplifies forms and procedure, and online courts offer a simple and accessible interface between the court and litigants. The benefits of these developments are palpable; digital justice has the ability to reach over half the global population who are digitally included. The counterpoint is that technological reforms risk leaving the digitally excluded behind. Even so, the replacement of stale, existing social and economic models is a feature of 21st century progress, and the law is not immune from these broader social forces. The asymmetrical adoption of technology is not a sufficient justification for circumscribing its use in the legal landscape. This new era in the administration of justice demands adaptation, rather than rejection.
The digital divide necessitates a gradual transition
While the marriage of technology and access to justice has positive features, it is important not to neglect the adverse side effect of technology, the digital divide. How widely digital exclusion is defined has an impact on the understanding of the digital divide and its severity. The common assumption is of a person without access to the Internet or a device. However, the definition is multidimensional. Digital exclusion extends to persons without the ability, confidence or willingness to engage with technology.
The exact magnitude of digital exclusion against the backdrop of justice is difficult to ascertain. However noting the substantial digital divide verified by national digital exclusion surveys, including in Australia and the United Kingdom, it is clear the impact on access to justice is sizeable. Not only is the divide expansive but the digitally excluded are often the most vulnerable classes. Persons are more likely to be digitally excluded or illiterate if unemployed, uneducated, disabled, elderly, homeless, indigenous or rurally located. And unfortunately, those who are digitally excluded and unable to access justice have a greater likelihood of experiencing legal problems.
By understanding the gravitas and breadth of the problem, it reinforces to legislatures that the digital transformation of the legal system should be measured. A significant proportion of the older generations may never achieve basic digital literacy, impeding them from using online services effectively or at all. Therefore, at least for the existing generations, the continuation of paper-based processes and face-to-face hearings is required. Some reforms seek to digitise and remove traditional systems as a cost-cutting measure, however for the next few decades these savings should not be the focus. As the digital divide organically shrinks, as new generations grow up in a digital world, resources supporting traditional courts can be reduced and savings from technology may be realised. Until then, offline and online court processes should coexist to better provide for equal access to justice.
Reforms require iteration
Jurisdictions that are already implementing digital justice reforms have acknowledged that the reforms must cater to all persons, but existing platforms provide only partial accessibility for the digitally excluded. The United Kingdom offers an informative case study that is emblematic of the struggles other jurisdictions are facing. The introduction of online courts was accompanied by the first wave of solutions to the digital divide. The staple solution was ‘Assisted Digital Support’ (‘ADS’), which offers multi-channel technical support that is tailored to different user needs, including face-to-face support, telephone help and web-chat assistance. The initiative has robust backbones but requires further development. Uptake is lackluster, as awareness of ADS remains low. Some services still discriminate against disadvantaged groups, such as people with ‘pay-as-you-go’ mobile phone plans who incur potentially prohibitive phone bills when accessing telephone support. However, the United Kingdom and analogous jurisdictions must remember that no system is flawless at inception. A ‘fail forward’ attitude is pragmatic and practical, with ongoing iterations that consider stakeholder feedback, and which capture more people seeking to assert their rights.
Legislatures need to make informed choices about the design of digital justice. This requires careful balancing of the benefits of the technological revolution against the risks of the digital divide. These three insights should be used as guideposts for tomorrow’s justice systems. First, the digital transformation of justice systems is inevitable and will not be stunted by the digital divide. Second, the impact of the digital divide can be minimized if the transition is gradual. Third, existing reforms produce admirable first-generation digital justice, but continuous refinement is required. Together, these insights can bolster access to justice for the digitally included and excluded.
 Coined by Lloyd Morrisett, former president of the Markle Foundation, see Donna Hoffman and Thomas Novak, ‘The Growing Digital Divide Implications for an Open Research Agenda’ (Paper presented at the Understanding the Digital Economy: Data, Tools and Research Conference, 25–26 May1999) <https://www.markle.org/sites/default/files/digitaldivide_openresearch.pdf> accessed 8 December 2019
 Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 MLJ 40, 54 < https://www.mq.edu.au/about/about-the-university/faculties-and-departments/faculty-of-arts/departments-and-centres/macquarie-law-school/macquarie-law-journal/mlj-2019/Digital-Justice.pdf > accessed 24 November 2019.
 Mark Lloyd, ‘The Digital Divide and Equal Access to Justice’ (2002) 24(4) HCEL 505, 507 <https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol24/iss4/3> accessed 24 November 2019.
 Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Speech at Special Lecture Series on Technology and the Future of the Legal Profession, Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326> accessed on 24 November 2019.
 Ministry of Justice, ‘Court and Tribunal Reforms’ (HC 190, 31 October 2019) <https://publications.parliament.uk/pa/
cm201919/cmselect/cmjust/190/19004.htm#_idTextAnchor002> accessed 25 November 2019.
 Victorian Civil and Administrative Tribunal Online Dispute Resolution Pilot; British Columbia Civil Resolution Tribunal.
 Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (n 4); Lord Justice Briggs, ‘On the Cusp of a Civil Revolution’ (Speech at The Annual Harbour Lecture, Hong Kong, 12 October 2016) <https://www.harbourlitigationfunding.com/
wp-content/uploads/2016/10/The-speech-On-the-cusp-of-a-civil-revolution.pdf> accessed on 29 November 2019.
 JUSTICE, ‘Preventing Digital Exclusion from Online Justice’ (Report, 4 June 2018) 1 <https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/uploads/2018/06/Preventing-Digital-Exclusion-from-Online-Justice.pdf> accessed 25 November 2019.
 Churchill Fellowship, ‘Exploring the Use of Online Dispute Resolution to Resolve Civil Disputes: How to Best Integrate an Online Court into the Victorian Public Justice System’ (Report, 2018), 46 <https://www.churchilltrust.com.au/media/fellows/Palmgren_K_2017_Use_of_online_dispute_resolution_to_resolve_civil_disputes.pdf> accessed 24 November 2019.
 James E Cabral, et al., ‘Using Technology to Enhance Access to Justice’ 26(1) HJLT 241, 266 <http://jolt.law.harvard.edu/
articles/pdf/v26/26HarvJLTech241.pdf> accessed 24 November 2019.
 Lisa Toohey et al., ‘Meeting the Access to Civil Justice Challenge: Digital Inclusion, Algorithmic Justice and Human-centred Design’ (2019) 19 MLJ 133, 140 <https://www.mq.edu.au/about/about-the-university/faculties-and-departments/faculty-of-arts/departments-and-centres/macquarie-law-school/macquarie-law-journal/mlj-2019/Meeting-the-Access-to-Civil-Justice-Challenge.pdf> accessed 24 November 2019.
 Civil Justice Council, ‘Assisted Digital Support for Civil Justice System Users: Demand, Design and Implementation’ (Report, 2018) 13 <https://www.judiciary.uk/wp-content/uploads/2018/06/cjc-report-on-assisted-digital-support.pdf> accessed 24 November 2019.
 JUSTICE, ‘Prevent Digital Exclusion from Online Justice’ (n 9) 9.
 Cabinet Office and Government Digital Service, ‘Government Digital Inclusion Strategy’ (Report, 2014) <https://www.gov.uk/government/publications/government-digital-inclusion-strategy/government-digital-inclusion-strategy> accessed 25 November 2019; Julian Thomas, et al., ‘Measuring Australia’s Digital Divide: The Australian Digital Inclusion Index’ (2019) <https://www.csi.edu.au/media/2019_ADII_Report.pdf> accessed 25 November 2019.
 JUSTICE, ‘Prevent Digital Exclusion from Online Justice’ (n 9) 8; Toohey et al., ‘Meeting the Access to Civil Justice Challenge’ (n 12) 146.
 Toohey, ‘Meeting the Access to Civil Justice Challenge’ (n 12) 135.
 JUSTICE, ‘Prevent Digital Exclusion from Online Justice’ (n 9) 8.
 Ministry of Justice, ‘Court and Tribunal Reforms’ (n 6).
 James E Cabral et al., ‘Using Technology to Enhance Access to Justice’ (n 11) 257.
 Ibid 246.
 Civil Justice Council, ‘Assisted Digital Support for Civil Justice System Users’ (n 13) 22.
 Ministry of Justice, ‘Court and Tribunal Reforms’ (n 6).
 Churchill Fellowship, ‘Exploring the Use of Online Dispute Resolution to Resolve Civil Disputes’ (n 10) 21.
 Toohey, ‘Meeting the Access to Civil Justice Challenge’ (n 12) 150.