An Illustrated Guide to the Litigation Process
As societies become more and more “datafied,” and automated systems are making decisions about us that can have a significant impact on our lives, it is as important as ever for us to be able to have recourse to the courts. After all, our rights are only as strong as our ability to enforce them.
Nonetheless, for many without a legal background, the process of taking a human rights case to court can be a mystifying process.
Atlas Lab seeks to break down the role that litigation can play in safeguarding, protecting and promoting our human rights in the age of machines. It does this through simple and short explainers of some key concepts, illustrated with some recent examples of cases that have sought to protect us from (some not so) “intelligent” machines.
This website is not a substitute for legal advice. The precise process of bringing a case can vary from country to country, and the intricacies of taking a case depends heavily on the context and circumstances in which it is being brought.
Therefore, if you want to explore the possibility of taking a legal challenge it is always worth seeking out a lawyer or organisation that can help you. If you are such a lawyer or organisation, feel free to reach out to us!
Why is litigation important?
Before looking at the process of building and taking a case, it is worth reflecting on what litigation can achieve and why it is so important.
Litigation is simply another word for a lawsuit or a court case. In its simplest form, it is a dispute between two parties that is brought before a court. It is the court’s job to reach a decision on this dispute based on what the law says (i.e. the court will seek to enforce the law).
The person bringing the case is often referred to as a claimant, plaintiff or applicant. The person against whom the case is brought is often referred to as the defendant, or respondent.
The courts, by deciding on the cases brought before them, perform a crucial function in any society. They can often bring the law to life by directly applying it to real world situations and controversies. Furthermore, they can protect individuals and communities from abuse by upholding their rights in specific circumstances. This guide will focus primarily on human rights litigation and the role it can play in protecting us against harmful machines.
There are numerous examples of courts handing down decisions that have brought about positive changes for human rights. For example, courts in Colombia have ruled that charging tuition fees for primary education is unlawful, securing free education for twelve million children. A court in West Africa has ruled that Nigeria breached human rights by failing to regulate multinational oil companies that degraded the environment of the Niger Delta. In India, courts have pushed the government to implement food provision schemes to tackle starvation and famine in the country under the right to food. While courts across the globe, from the US and Taiwan to Bolivia and Mexico, have recognised the right to same-sex marriage.
Courts have even started dealing with the rights implications of new technologies in their decisions. For example, the regional human rights court for Europe has found that an individual’s privacy had been breached by the French authorities’ use of real-time geolocation via GPS. Courts in the US have held that it is unlawful for police to track an individual with an electronic beeper, use thermal scanning on a residence, or access a person’s historical cellphone location records without first obtaining a search warrant. While South Korea’s highest court has ruled that a law mandating real name registration in order to post on certain websites was a violation of users’ rights.
Although relatively less prevalent, human rights decisions on computer algorithms have been slowly emerging from the courts. A number of these are included on our case studies page, and others are referred to throughout this website. If you would like to suggest a case study to the website, get in touch!
The Justice Black Box
Taking a case to court can be an arduous, complex and time-consuming endeavour.
Nonetheless, the process of taking a case can be broken down into some simple features or steps. These are illustrated below and discussed in more detail on our site.
Preparing to Litigate: deciding to bring a case is not something to be taken lightly. It requires a careful weighing of the benefits and the costs of an expensive, time consuming and resource heavy process. When deciding whether to litigate, a claimant will also have to consider whether they have a valid legal claim to bring to court. This will require, among other things, an assessment of whether a human rights violation has taken place, who is responsible for the violation (i.e. who the defendant will be), and who has been harmed. When it comes to human rights litigation, identifying a case will involve consideration of two details elaborated on further on this site, What is Human Rights Law and Spotting There Is A Problem.
Evidence Gathering: an individual seeking to take a case will then try to gather evidence that supports their legal claim. There are various methods that may be used to gather evidence on how machines function and are used, and their impact on human rights. This is considered on our Building an Evidence Base page.
Strategy Development: when taking litigation, a party will usually formulate a litigation strategy with their lawyers. This is a process of analysing, reviewing and streamlining how a case will be approached in order to maximise success. You can find out more about the kind of questions a lawyer might ask themselves when developing a litigation strategy on our Working Out A Strategy page.
Bringing a Case: a legal claim will then be filed at a court. This claim will include the facts, legal arguments, and evidence on which the case relies. The court will be the entity that has the authority to decide on the legal dispute. The legal claim will try to persuade the court that a legal wrong has been committed and that a certain measure should be adopted. You can read more about courts on our What Are Courts And How Do They Work? page.
Disclosure: after filing the legal claim, there will usually be an exchange of evidence on which the claim is based. This means the claimant will provide information to the defendant on which they base their case, while the defendant will provide information to the claimant that they intend to use to dispute the claim. This process is referred to as disclosure. The purpose of this process is to ensure that all parties know of all documents that have a bearing on the case. If a defendant fails to disclose information that is relevant to the case, it may be possible for a claimant to ask the court to order that they be disclosed to them. This can be a way of shedding light on information that has previously been kept secret. For example, it may be possible to try to secure disclosure of the source code, models, algorithms, features and labels that make up an automated system.
Hearing: once disclosure has taken place, the parties will usually be notified of a date for a hearing. Some cases may be resolved on the papers alone, which means a hearing will not be held and there will only be written correspondence. Hearings are an opportunity for both parties to present their sides of the case orally to the court. Evidence may also be presented at the hearing. For example, expert and other witnesses may give oral evidence to the court and can be “examined” (i.e. questioned) by lawyers for both sides.
Decision: a decision (sometimes referred to as a judgment) will then be reached by the court based on the arguments presented to it. The decision sets out the courts finding of which party is correct on the basis of the law. Although there are exceptions, decisions will usually be in written form and will set out the parties’ details and arguments, agreed facts, relevant law, court analysis and orders of the court (i.e. remedies). You can read more here.
Appeal: for a period of time after a decision is reached, there will usually be an opportunity for a party to appeal aspects of the case that they “lost.” This provides an opportunity for a higher court to review the findings of a lower court. It may even be possible to appeal up to some regional or international courts, many of which require that all national opportunities to pursue the legal dispute be “exhausted” before they are raised with them. Appeals will usually be pursued on the basis that the lower court wrongly applied the law to the facts of the case (i.e. an error of law). However, an appeal may also be pursued on the basis that an error had been made in the fact-finding process of the lower court, rendering the decision on what actually happened wrong (i.e. an error of fact). It may also be possible to appeal a decision if the court carried out the litigation process unfairly, for example if they refused one of the parties an appropriate opportunity for their case to be heard. There have been some cases challenging the use of automated systems that failed at a lower court and later succeeded on appeal before a higher court. One example being a challenge brought to police use of live automated facial recognition technology in the UK. In that case, the Court of Appeal found that the lower court had made an error of law when it found that the use of the technology against a civil rights campaigner had been lawful.
Execution and Enforcement: where the claimant succeeds in obtaining a positive decision, this decision will have to be enforced. This is the process of ensuring that the solution put forward by a court is actually carried out by those responsible. Sometimes this process can be relatively simple. Some court decisions may not even need steps to be taken for their enforcement because they have an immediate effect, for example where the court has the power and authority to invalidate a law causing the harm. Courts in some countries can take a very active role in ensuring that their decisions are enforced. Usually, however, enforcing a decision can be a long and challenging process. It may be necessary to lobby parliaments or conduct campaigns to put pressure on those responsible for implementing court decisions. In some circumstances, it may be necessary to bring another case to court claiming that a legally binding court order has been breached (this can amount to a crime). You can read more on our Execution & Enforcement of Court Decisions page.
Feel free to jump to an aspect of the litigation process you are interested in reading more about. Otherwise, we recommend you start with the explainer on What is Human Rights Law? which looks at the rules that can be applied by courts in human rights cases.
If you notice anything incorrect or missing from our explanations, please let us know through the contact form!