Strategic Litigation | Not Always Rosy
On 11 June, I moderated a panel discussion on the promise and perils of strategic litigation on digital rights. Here’s what I learnt.
From the outside, strategic litigation looks like glamorous work. Picture an eloquent lawyer - the defender of human rights - rattling arguments and making an impassioned plea. High-stakes courtroom battles, with the virtuous lawyer fighting the coercive impulses of governments and the greed of private corporations. There’s something mystical about strategic litigation, especially when one considers that so many hard-fought battles on privacy and digital rights have come through these very means.
As a non-lawyer, I was curious to understand what goes on in the minds of men and women who don the noble robes to fight the world’s fight. So, I organised a panel discussion with three stalwarts in the litigation space — Nani Jansen Reventlow (Founding Director, Digital Freedom Fund), Olumide Babalola (Founder, Digital Rights Lawyers Initiative) and Vrinda Bhandari (independent litigator). Unsurprisingly, it turns out that strategic litigators, just like many of us, grapple with the mundane aspects of the art of persuasion. But an hour-long discussion of these strategies gave me a treasure trove of insights into what’s in the secret sauce of success.
First, strategic litigation is only one tool that must work alongside other social-change efforts. Without these close integrations, even a victory in court may remain hollow because the political will for successful implementation may be lacking. With better coordination, even failure in court may lead to success by bringing public attention to the issue at hand. In the civil society pushback against India’s ID system (Aadhaar), many different kinds of organisations — grassroots activists, media, lawyers, technologists — came together, and that led to significant systemic changes.
Second, the case itself is just one way litigation can have impact. The very threat of litigation may compel governments and corporations to make concessions. For example, public outcry about the UK police’s digital strip search technology and the looming battle in court led the government to scrap the program. Similarly, even cases that end in failure may have an impact. For example, Chile’s first public interest digital privacy case ended in failure when the Supreme Court permitted the use of surveillance balloons, but it brought mainstream attention to the issue and raised the profile of the organisations involved as champions of digital rights. The constitutional challenge against Aadhaar may have failed in India, but a provocative dissent reverberated at the other end of the world — in Jamaica — where the high court used it to strike down the island nation’s Digital ID program.
Third, litigators should not let their guard down even after success in court because the threat landscape for digital rights is constantly evolving. Courts will often hand down partial victories, and litigators need to think hard about the long-term effects that an observation may have. So, while India’s Shreya Singhal judgment of 2015 struck down the government’s ability to remove “offensive” speech online, it left the edifice of government’s content takedown requests and a problematic intermediary liability regime untouched. Today, that has become a festering wound that has most recently manifested itself as draconian new IT Rules that bestow on the government high control over cyberspace.
Fourth, a lot more determines success at courts than just the strength of arguments or righteousness of the cause. Litigators need to be aware of the political economy of the issue well — especially those who would be parties to the litigation. They need to think about which court to approach, and what kind of legal petition to file. They also need to make a strategic choice about when to push the case, and find plaintiffs who are willing to put themselves out there for the greater good. Once in court, they need to refer to jurisprudence in other countries, so that judges will feel more comfortable. Expert testimonies and real-life examples of harms (especially from directly affected communities) also help expedite the judges’ learning curve.
Fifth, litigators should be mindful of implementation capacity gaps that could prevent the judgment from being fully implemented. One of the first digital rights cases that Olumide took up was to challenge Nigerian laws that criminalised offensive speech. Despite reverses in two courts, he approached higher courts and finally got a favourable judgment from the ECOWAS court. But the enforcement of that judgment in Nigeria, especially because it came from a regional multi-lateral court, leaves much to be desired. Similarly, in contravention of a Supreme Court judgment, the Indian police continues to file cases against its citizens for ‘offensive’ speech.
But strategic litigation is not without perils. Repeated setbacks on an issue in courts can harm the movement by dissuading other possible litigants from approaching the judiciary. Therefore, litigators must be circumspect about what issues, and in what manner, they approach courts. Another possible pitfall is that opponents who lose in court may try to undo the court’s judgment, often in ways that are more deleterious than initially envisaged. For example, while courts struck down a proposed Dutch system for predictive policing to detect welfare and tax frauds, new drafts that are doing the rounds are in many ways worse than the original one. This also reinforces the need to take a long-term view and be connected to the rest of the ecosystem.
Ultimately, social change through strategic litigation is a long and difficult journey. Just one case can take years, especially in global south countries. Vrinda litigated the case against the internet shutdown in Kashmir following the abrogation of the special status of the state. The case dragged on for over 500 days before 4G internet was restored by the central government. India continues to be the internet shutdown capital of the world — with nearly 10 times as many shutdowns as the second-highest country — and the court’s vacillation on the issue means that Indian citizens are still not protected from the unfairness of the government snapping their connection to the outside world. The issue still hasn’t been settled, and may not be for years to come. Everyone involved needs to be patient and persistent.
Despite all these limitations and challenges, digital rights litigation is one of the most impactful tools to bring about changes in digital rights. There is a lot that each of us can do to support those who fight these battles in courts. Litigation is expensive — so, philanthropies and citizens can step up to support the defenders of our digital rights. Litigation is complex — so, researchers can conduct analysis and write papers that lawyers can use in courts. Litigation is interconnected — so, each of us can contribute to the movement that makes these cases ultimately successful. In many freedom movements, such as that in India, lawyers are at the forefront of fighting against oppressive regimes. It is about time we support those who are fighting against an oppressive internet.