Discussion Points Information Communication Technology: a Legal Practitioners. Perspective. Presented at Law Society of Zimbabwe Winter School 2016

Transcription

1 Discussion Points Information Communication Technology: a Legal Practitioners Perspective Presented at Law Society of Zimbabwe Winter School 2016 Introduction Zimbabwe has the few laws and ICT related policies in place, with the current ICT policy having been adopted in 2005, when windows XP and windows Vista were the in thing, now we are windows 10, and similarly many social media platforms have emerged, Facebook, Twitter, snap chat, signal, Whatsapp, ICT policies. The 2015 draft policy sets the stage for a number of wide ranging changes which could alter the telecommunications field. The 2015 draft policy also proposes to introduce a national infrastructure backbone company, data centre etc. The Constitution of Zimbabwe is the supreme law of the land and various provisions in the Bill of Rights are relevant; right to human dignity (section 51); right to personal security (section 52); right to privacy (section 57); right to freedom of expression and freedom of the media (section 61); freedom of artistic creativity, academic freedom (section 61 (1)(d) and freedom of scientific research and creativity (section 61(1)(b)); access to information (section 62); right to administrative justice (section 68); right to a fair hearing (section 69); right of accused persons (section 70). There are several other subsidiary laws relevant, including the Postal and Telecommunications Act, Interception of Communications Act, the Access to Information and Protection of Privacy Act, the moribund Control and Censorship of Entertainment Act, section of Public Order and Security Act, Criminal Law Codification and Reform Act, Copyright and Neighbouring Rights Act, Patents Act, Trade Marks, Integrated Circuits and

2 Designs Act, Consumer Contracts Act. These appear as a lot, but there are more laws coming. This paper will attempt to cover critical aspects of relevance to legal practitioners focusing on meaning of ICT, importance for legal practitioners, challenges faced by lawyers in using or accessing ICT, ICT and the practice of law (including aspects such as evidence, electronic documents, criminal cases of abuse) matters arising from ICT use such as defamation, trademark, intellectual property, computer crimes, electronic filing of documents, e- discovery. Few statistics Demand for the internet is growing tremendously. Global figures for internet use are estimated at 3 billion, with gadgets connected to the internet (internet of things (IoT)) projected to increase to 38.5 billion in 2020, compared with 13.4 billion in 2015, a 285% increase. Population of (ZIMSTATS 2012) and an estimated active mobile subscribers of 12,757,410 (NetOne 4,134,720, Econet, 6,702,691, Telecel, 1,919,999) including multiple subscriber identity module (SIM) card holders, Zimbabwe has recorded rapid growth in telecommunications sector. These statistics are collected from MNO operators returns which are compulsory under the Postal and Telecommunications Act (PTA) and attendant December 2015 (POTRAZ). Mobile penetration has increased significantly due to the active mobile subscriptions to 95.4% (95/100 people have active mobile lines) Internet access has increased to 48.1%, with the majority accessing through mobile broadband platforms in urban settings as 3G is still limited. As most internet is accessed through mobile platforms, data utilisation

3 has equally increased to record 1,208,379GB from 944,268GB recorded Q3/2015 (POTRAZ 2015). Facebook has over 1 million users in Zimbabwe, difficult to get the actual figures as Facebook has no application programming interface API capabilities for Zimbabwe, A law practice and education in technology era Lawyers are most reluctant to change especially when it appears to be threatening their income base, technology has the potential to be disruptive if not harnessed positively. The office work load can be greatly reduced and the cost to the client lower if one looks this in the terms of access to justice. Research work is now electronic as case law, journals, articles, case summaries are all available online, including our own through or the JSC websites. Content is not an issue. Law firms are issuing process online summons, proof of service is done online. Other jurisdictions such as Rwanda and Namibia use of online, e- justice processes have advanced because of better connection speeds and deliberated government policies for use of ICT. Law schools are going virtual, locally the Great Zimbabwe University Herbert Chitepo Law School is making strides in conducting e-visiting professorship/seminars, and other law faculties/universities despite their legacies are struggling with coming to terms with a changing world. If you don t change or adapt you die. But there are impediments to these changes including without being contemptuous, the reluctance by the bench to adapt to use technology in many jurisdictions. Some of the challenges include; General lack of interest by lawyers and judges to use ICTs. Most law firms have only one computer that is by the receptionist or administrator, the senior partner asks his s to be printed, delivered to him or her, write by hand.

4 Lack of infrastructure to fully exploit ICT, the cost factors that might be inhibiting for small firms for starting up, Legal disputes arising out of electronic or internet transactions, we now have advent of online commerce, shopping malls, for instance not happy with a product purchased online, cooling off periods, withdrawal terms and conditions, fraudulent websites or operators; Conflict of laws, jurisdiction, absence of laws governing electronic transactions, cross border aspects, harmonising of laws in SADC region. Europe is advanced in consumer protection laws; Admissibility in court proceedings of electronically generated documents, In the case of S v Bennet printed documents purporting to be s tendered by the state as evidence against the accused on the basis that the state failed to prove the authenticity of the s were disallowed. The authentication aspect is lacking, we do have laws that have relevant sections and definitions of electronic evidence such as The Civil Evidence Act [Chapter 8:07] which accepts computer evidence in the form of documents (section 13). The Act defines a computer as: computer means any device or apparatus, whether commonly called a computer or not, which by electromechanical, mechanical or other means is capable of receiving or absorbing data and instructions supplied to it, of processing the data according to mathematical or logical rules and, in compliance with such instructions, of storing the data before or after such processing, and of producing information derived from the data as a result of such processing and includes any printing unit attached to such a device or apparatus. Fairly wide definition but might not sufficient or consistent if the definition is focused on processing capabilities, a mobile phone IPhone 6 has better processing power and speed

5 than Pentium III Intel desk top; cars, medical equipment, televisions are have computer functions and can be hacked; The civil evidence act mentions documents produced by computer but soon we might be working in a paperless society. The act needs some revision and current the Electronic Evidence Act could address some of the issues. Criminal Procedure and Evidence Act [Chapter 9:07] needs revisiting as well to deal with admissibility of electronic evidence. Criminal Law (Codification and Reform) Act [Chapter 9:23] section deal with computer related crimes which include: unauthorised access to or use of computer or computer network (section 163), deliberate introduction of computer virus into computer or computer network (section 164) and unauthorised manipulation of proposed computer programme (section 165). Electronic evidence should therefore pass the tests required in civil evidence of o of relevance of the evidence o Authenticity of the evidence o Accuracy of the evidence o Whether the document is an original or duplicate Actors that provide certification services which are more like authentication services for encryption or electronic signatures are not regulated or provided under law, these should be covered in the electronic transactions act; the certification process could probably be based with an independent regulator The Legal Practitioners Act and attendant regulations will require revisiting on issues of advertising, soliciting for clients as now most lawyers are openly discussing legal matters

6 online whether its for social or fun like the Zimlegal Social Forum etc or its Legally Fit Whatsapp group, or on profile for their Facebook page. Continuous professional development should include a detailed course on ICT for Lawyers, this should also be considered even at law school as currently only MSU has Telecommunications as part of its course (optional). Most students or lawyers studying these courses are taking such at external universities/ Court rules of procedure from magistrates to constitutional court should be reviewed for their ability to work within a technologically advancing society to removed Compliance visits by the LSZ should include possible checking on law firms policies on data storage, files and security. This should not be intrusive but ability to ensure that information and files for clients is safe and not only expose the lawyer, but also the LSZ.