A court is a formal body that can hear and resolve legal disputes that are before them. They perform a crucial function in providing access to a remedy for legal harms and interpreting and applying laws to specific facts.
They are expected to do this in an independent way, free from political or corporate influence. Furthermore, they will usually carry out their hearings of a case in public, with members of the public able to watch them as they are presented with arguments and evidence, as well as when they hand down their decision. This is to ensure that justice is not only done, it is seen to be done.
When litigation is brought before the courts, the courts will carry out the following functions:
Fact-finding: courts will investigate the claims brought before them, including the facts that underly the claims. Where the facts are in dispute, the court will try to investigate and ascertain what actually happened in the case before it.
Interpreting and applying law: courts will try to apply law to the facts of the case in order to resolve the dispute. Since laws contain inherent flexibility, the court will try to interpret the law in order to apply it to the specific facts before it. In doing so, the court may be contributing to what the law says on the issue for future courts (i.e. creating legal precedent and clarifying the law).
Preventing further harm: courts may also issue orders that require a party to do or refrain from doing something. Such an order can even be made pending the outcome of the court’s decision in order to ensure that justice can be done in the case. For example, the court may order that a machine learning system not be used until the court has decided whether the system violates human rights law.
Resolving legal disputes: courts will hand down a decision that seeks to resolve the dispute before it. It carries out this function by delivering a decision that is binding on all parties to the case. The decision can also be binding on individuals and entities who were not parties to the case.
Cases are usually presided over by one or more judges. Judges ensure that the rules of the court are being followed and, in most circumstances, will be responsible for deciding the case. Although extremely rare in human rights-type cases, some disputes may be resolved by a jury with instructions and guidance from a judge. A jury will usually be made up of a cross-section of the community.
In light of the important role judges play in the interpretation and application of laws to emerging and evolving technologies, like machine learning systems, it is vital for judges to understand the role and impact of these technologies so as to help them reach sound legal decisions.
Some judges have already spoken publicly on the issue of “intelligent” machines and artificial intelligence, and their impact on human rights and other areas of law.
In 2019, Lord Justice Sales, a judge sitting on the Supreme Court of the United Kingdom, spoke about the relationship between the law and algorithms/artificial intelligence. He noted some of the obstacles to enforcing rights in relation to the threats posed by these systems, including where lack of transparency and an imbalance of power can make it difficult for individuals to enforce their rights effectively before the courts. He also recommended the establishment of an algorithm commission or some other expert body that courts could refer code to for neutral expert evaluation in their cases. Another UK Supreme Court judge, Lord Hodge, has similarly shared his views on how the law might have to adapt for new technologies, such as artificial intelligence.
In March 2020, Judge Spano, President of the European Court of Human Rights, gave an interview with Law Pod, a legal podcast, on the challenges posed by government use of automated decision-making systems. In this podcast he outlined how government use of these systems can have a negative impact on human rights, referring to the decisions of Loomis v. Wisconsin and the SyRI case (both discussed as case studies on this site).
What courts are out there?
Different legal systems will have different judicial or court systems. When it comes to deciding on human rights issues, court systems can be broken down into national, regional and international systems.
At national level, there will usually be a hierarchical system of courts consisting of:
Lower courts: cases will usually begin at a court of first instance, which may be a local or national court. It is the first available court in the hierarchy that is able to hear and resolve the legal dispute, and its decisions can be appealed by an unsuccessful party to an intermediate (or maybe even straight to the supreme/apex) court.
Intermediate courts: when cases are appealed, they will usually be heard by appellate courts. These courts are responsible for reviewing the decision of the lower court to determine whether it has been correctly reached according to the law. It may also find that the lower court made an error in its fact-finding process or that the lower court carried out the litigation process in an unfair way. An unsuccessful party before an intermediate court may be able to appeal the decision to the supreme or apex court, but in some jurisdictions these latter courts will only consider legal cases of the greatest public importance.
Supreme or apex courts: these are the highest courts within the hierarchy of courts in a country. They may also be referred to by the terms “court of last resort” or the “final court of appeal.” They are usually the highest authority for interpreting the laws of a country, and their decisions cannot be further reviewed by another national entity. In some countries, this will be the court that decides whether legislation or other government measures are compatible with the constitution. It may even be possible, depending on the country where a case is taken, for cases on the constitutionality of laws to be taken directly to this court.
In some contexts, it may be possible to take a case before another body that is not a court (i.e. non-judicial) before taking a legal claim to court. These bodies may be able to make a decision on the relevant dispute and could have the power to make binding decisions (although this is not always the case).
For example, there may be an option to take the case to a regulatory authority, an ombudsperson (i.e. an independent individual who is tasked with investigating and addressing complaints of public maladministration), or a National Human Rights Institution (i.e. an independent body responsible for promoting and monitoring human rights compliance in a country).
In one of our case studies, we discuss a decision handed down over thirty years ago by a regulatory authority in the UK, which found the use of a computer system to stream candidates for medical school to be discriminatory according to law. In its decision, this body made a number of recommendations which, although not legally binding, gave guidance on how such computerised streaming systems could be legally compliant.
Across the world, countries have established data protection authorities that have the role of monitoring and supervising the application of the law regulating how personal data should be processed (i.e. data protection law). In some countries, these authorities also have the power to handle and resolve complaints alleging a violation of this law (they may even make binding orders and issue fines).
Many of these regulatory bodies have begun to hand down decisions on complaints that concern automated decision-making systems. For example, data protection authorities in France and Sweden have found the use of facial recognition technologies in schools violated data protection rights.
It may even be the case that legal complaints can be raised with more than one non-judicial body. In Finland, for example, a statistical model used by a financial services company, Svea Ekonomi, to assess creditworthiness was successfully challenged before two non-judicial bodies: the National Non-Discrimination and Equality Tribunal and the Data Protection Ombudsman. These bodies found that the automated system used for credit-scoring violated equality legislation and data protection law because, among other things, it had used factors such as age, gender, mother tongue/language and place of residence in deciding whether loans should be granted.
At regional level, there are a number of courts that can make binding decisions against countries on human rights cases:
Europe: European Court of Human Rights (this is the court responsible for enforcing the European Convention on Human Rights. In Europe, the Court of Justice of the European Union can also enforce the EU Charter of Fundamental Rights, but the ability for an individual to bring a case directly before this court is significantly more limited).
Americas: Inter-American Court of Human Rights (this is the court responsible for enforcing the American Convention on Human Rights, and in most cases the claim must first be heard by the Inter-American Commission on Human Rights).
Africa: African Court on Human and Peoples’ Rights (this is the court responsible for enforcing the African Charter on Human and Peoples’ Rights. There are only a limited number of countries that can be sued directly before this court, so most claims will first go to the African Commission on Human and Peoples’ Rights. In West and East Africa, the ECOWAS Community Court of Justice and the East African Court of Justice may also hear human rights claims. You can read more here).
These courts can only hear cases against states that have (1) signed and ratified the relevant human rights treaty and, where relevant, (2) followed the steps a state has to follow (e.g. signing and ratifying another document) that gives the court authority to decide cases in relation to them. It is not usually possible to take human rights cases against companies or private individuals before these courts.
To date, these courts have not handed down any decisions that take a significant and substantial look at machine learning and other algorithmically-driven technologies, and their impact on human rights.
Nonetheless, the European Court of Human Rights has handed down quite a few decisions that deal with the implications of new technologies on human rights (see a factsheet here). In one decision, although not dealing directly with machine learning technology, it took note of the particular threat posed to privacy rights by facial recognition and facial mapping technologies.
There is no international human rights court. Nonetheless, there are eight human rights treaty bodies that can, under certain conditions, receive and consider individual complaints or communications from individuals.
Although their decisions on these complaints/communications are not generally considered legally binding on states, they do represent a reasoned interpretation of the relevant treaties.
Complaints can only be filed against states that have (1) signed and ratified the relevant human rights treaty and (2) have taken the action needed to give authority to the body to make decisions in relation to them. These human rights bodies include:
Human Rights Committee (HRC) (this body may consider individual communications alleging violations of the International Covenant on Civil and Political Rights in relation to states that have signed and ratified this document).
Committee on Elimination of Discrimination against Women (CEDAW) (this body may consider individual communications alleging violations of the Convention on the Elimination of All Forms of Discrimination against Women in relation to states that have signed and ratified this document).
Committee on the Elimination of Racial Discrimination (CERD) (this body may consider individual complaints alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination in relation to states that have made a declaration under that treaty).
Committee on the Rights of Persons with Disabilities (CRPD) (this body may consider individual communications alleging violations of the Convention on the Rights of Persons with Disabilities in relation to states that have signed and ratified this document).
Committee on Economic, Social and Cultural Rights (CESCR) (this body may consider individual communications alleging violations of the International Covenant on Economic, Social and Cultural Rights in relation to states that have signed and ratified this document).
Committee on the Rights of the Child (CRC) (this body may consider individual communications alleging violations of the Convention on the Rights of the Child in relation to states that have signed and ratified this document).
To work out whether a state has ratified the relevant human rights treaties and signed up to these complaint mechanisms, you can consult this UN treaty tracker.
When can a court hear a case?
Whether someone can actually take a specific piece of litigation before a court requires a careful analysis and application of that court’s procedural requirements.
All courts have rules of procedure to determine whether they have the ability (i.e. jurisdiction) to hear a particular case. Therefore, before taking a case, it is always a good idea to read these requirements and consult with a lawyer on what is required.
A court’s rules of procedure may include requirements on:
Who can take the case: it is usually only possible for certain entities or individuals to bring a particular legal dispute before a particular court. This is a concept referred to as standing. The rules around who has standing before a court varies from court to court and depends on the area of law that applies. However, as a general rule, it is usually required that the case be taken by somebody who is directly affected by the issue before the court. In human rights cases, it will usually be a requirement that the case be brought by an individual or entity who has been the “victim,” or who is at real risk of being a “victim,” of a human rights violation. In some circumstances, it may be possible for an organisation or individual to bring the case on behalf of such a “victim.” There are also some countries that have very open rules on standing, allowing pretty much any organisation or individual to bring a case before the court if it concerns a matter of public interest.
Who the case can be taken against: courts can only consider cases against certain individuals or entities. At a fundamental level, cases can only be taken against an individual or entity that is recognised as a “legal subject” capable of having rights and obligations, such as a state, government, human being or company. That means it is not possible to sue machines before a court, no matter how human-like they might seem. Furthermore, as a general rule, a case can only be taken against a person or entity that has owed a relevant obligation to the person who has sustained the legal harm. For example, as noted above, regional and international human rights mechanisms can only consider cases that are taken against certain countries that are alleged to have violated an individual’s rights protected by treaties that the state has ratified.
Whether it is the right kind of claim: the case must involve a legal dispute involving the application of laws that the court has the competence and authority to interpret and apply. For example, it would not be possible to sue a business for selling defective products before the European Court of Human Rights.
Whether it is the right court at this stage of the litigation: some courts may require that the case be brought before other courts or bodies before it can consider the matter. For example, appellate courts might require that the case be brought to a lower court or tribunal first. Regional and international human rights mechanisms often require that the case be brought before all courts at national level (e.g. see lower, intermediate and supreme courts above) that could possibly hear the case before it will consider the matter (a concept referred to as the exhaustion of domestic remedies).
Whether the case was taken on time: courts may require the case to be taken within a certain period of time from when the legal issue, or the possibility of taking a case to the relevant court, arose. For example, at the European Court of Human Rights, a case has to be taken within six months of the final decision at national level (i.e. six months after the highest court has decided on the case).
Whether the party has followed the right process: courts may set out other procedural requirements around how to file and process a legal claim. They may have requirements around the content, form, style or length of the documents to be filed, as well as stipulations on how the case can be lodged with them (e.g. in some legal systems courts have been slow to accept filings by email) and how the other party should be notified about the case.
Once a case is filed with a court, and that court has heard the case, it will reach a decision. A decision will usually have certain requirements that need to be carried out. To make sure this happens, more steps might need to be taken. This is explained in more detail in the explainer on Execution & Enforcement of Court Decisions.
If you notice anything incorrect or missing from our explanations, please let us know through the contact form!