1. Digitization versus Privacy SAIPAR Presentation to the Southern African Chief Justices’ Forum 2 August 2013 1

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3. Digitization versus Privacy Public access to digital information as a worldwide trend Consequences for institutions: What is digitization? Why digitization? 3

4. Digitization versus Privacy Preservation for future generations 4

5. Digitization versus Privacy Public accessibility and educational purposes 5

6. Digitization versus Privacy Making material searchable 6

7. Digitization versus Privacy Conservation of irreplaceable material 7

8. Digitization versus Privacy Sharing at national, regional and international level 8 Reference UNIP EXTERNAL RELATIONS FOREIGN PARTIES Location UNIP6/5/ Date Title Old Reference 065 066 067 068 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 1964 1964-1965 1964-1965 1964-1965 1964-1966 1964-1966 1964-1966 1964-1966 1968 1969 1970-1971 1976 1977-1979 1977-1980 1978-1981 1979-1980 Malawi Congress Party and Government World Assembly of Youth Bechuanaland Peoples Party Swaziland Congress Party West Germany Social Democratic Party and Government Afro-Asian Solidarity South Western African Peoples Organisation Ghana C.P.P. and Government Foreign Ghana Today Swaziland Fighting News World Peace Council Young Writers of Asia and Africa Afro-Asian Peoples Solidarity Bulgaria Invitation Liberation Movements Afro-Asian Peoples Solidarity 6/00/9 6/00/16 6/00/10 6/00/12 6/00/42 6/00/B3 6/00/48 6/00/1A 6/00/3 6/00/1A 6/00/12 DRB/6/6/7 SGP/54/19/1 PLC/4/5 MCC/PLC/44 SGP/54/19/1

9. Digitization versus Privacy A public good 9

10. Digitization versus Privacy In summary: Why digitize? The decision to digitize, for any given institution, may be in order to: Increase access: where there is thought to be a high demand from users Improve services to an expanding user group by providing enhanced access Reduce the handling and use of fragile or original material Give the institution opportunities for the development of its technical infrastructure and staff skill capacity; Establish sharing partnerships with other institutions to create virtual collections and increase worldwide access; UNESCO guidelines facilitate OPEN ACCESS TO INFORMATION 10

11. Digitization versus Privacy Montreal Declaration on Free Access to Law In October 2002 the meeting of Legal Information Institutes in Montreal at the 4 th Law via Internet Conference, declared: Public legal information is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law; Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties Public legal information means legal information produced by public bodies that have a duty to produce law and make it public. It includes primary sources of law, such as legislation, case law and treaties, as well as various secondary (interpretative) public sources, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding. 11

12. Digitization versus Privacy The Reality of Legal Research in the Digital Era United States “Most legal research today [in the US] is carried out through computers, using [electronic retrieval systems] … rather than through printed reports and other published material.” Daniel Meador, 2000 Over 4 out of 5 US lawyers turn to online sources first when conducting legal research, over half of that group making use of a general purpose search engine and free online resources. In performing case-law research, less than 5% of US lawyers use print. In performing research on legislation, the percentage is slightly higher, but still in single digits – less than 8%. American Bar Association Survey, 2011 12

13. Digitization versus Privacy The Reality of Legal Research in the Digital Era Zambia A survey was conducted on legal research in Zambia, January 2013 by Prof Peter Martin (President, Centre for Computer Assisted Legal Education, former Dean Cornell University Law School and board member, SAIPAR) More than 75% of the respondents work in a firm or department that uses electronic forms to prepare documents. 98% of the respondents use electronic services or products to access case law. Of the electronic services or products used, the KAS Electronic Library was most frequently mentioned (75%) It was followed by Google (nearly two-thirds) and ZamLII (nearly one-third). The other heavily used source is the Zambian Parliament website Also mentioned were Juta, LexisNexis, SAFLII, AfricanLII, and the ICJ site. 13

14. Digitization versus Privacy Computerization Serving the judiciary and legal fraternity Digitization Serving the public at large 14

15. Digitization versus Privacy Legal Information Institutes Publish via the internet public legal information originating from more than one public body; Provide free, full and anonymous public access to that information; Do not impede others from publishing public legal information; and All Legal Information Institutes are encouraged to participate in regional or global free access to law networks. 15

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17. Digitization versus Privacy Free Access to Law for All 17

18. Digitization versus Privacy 18 “Rapid advances in technology have challenged courts to balance the interests between providing public access to their records and protecting the private information within those records when disseminating them electronically.” (Sudbeck, 2006)

19. Digitization versus Privacy Examples of breach of privacy in judgments: “The facts of the case are that Chikane Phiri on 15th July, 2010, appeared before the Subordinate Court of the first class for the Chipata District on a charge of DEFILEMENT, contrary to section 138 (1) of the Penal Code, as read with Act Number 15 of 2005. The particulars of the offence are that Chikane Phiri on the dates between 16th and 18th September, 2010, at Chipata, in the Chipata District of the Eastern Province of the Republic of Zambia, unlawfully had carnal knowledge of Enala Phiri, a girl under the age of sixteen years.” 2011 High Court Judgment 19

20. Digitization versus Privacy Examples of breach of privacy in media “28-YEAR-OLD Lusaka woman has advised people to ensure they know the HIV status of their partners before marrying. Violet Kawanga of Makeni said it was sad that there were men who were infecting women deliberately. She said this in an interview after Lusaka Local Boma Court magistrates Kalunga Chansa and Kaputa Ngandwe dissolved her marriage to Melvin Shamakamba. In this case, Shamakamba, 35 a deputy chief security officer at National Assembly of Zambia sued Kawanga for divorce citing irreconcilable differences. The couple got married in 2006 and had one child together. Kawanga said she discovered her former husband had been HIV positive since 2004 and was seeking private medical attention. She said she got a medical record of her former husband from the University Teaching Hospital which revealed his status.” The Post Newspaper, 17 June 2013 20

21. Digitization versus Privacy Consequences of breach of privacy Snowball effect Research Reports Employment Reputation Personal and societal relations Family Impact on Justice 21

22. Digitization versus Privacy Privacy v Open access Need for guidelines, implementation and enforcement Anonymisation Protocol Redacting a decision means to remove or replace certain information from the electronic copy of a decision in order to make this copy fit for public dissemination, in compliance with legal restrictions on publication or specific court orders and directives. Protecting the identity of minors, victims of rape, HIV carriers, tax information, etc. Minimizing personal information in judgments – such as addresses, ID numbers, medical information, etc. 22

23. Digitization versus Privacy Privacy guidelines in the US were developed by the Forum of Chief Justices (Sudbeck, 2006) Privacy guidelines have been developed in some individual countries in Southern Africa SACJF ‘s objective is to encourage the publication and dissemination of court judgments and the use of information technology 23

24. Digitization versus Privacy In light of the Conference theme: ‘The Quest for an Efficient Judicial System as a Key to Democratic and Economic Development’, we have the following questions for the Southern African Chief Justices’ Forum:  Is there consensus in the region to provide open access to legal information? If so, how?  Information knows no boundaries: Is there a pressing need to develop guidelines across the region?  Will the Southern African Chief Justices’ Forum provide leadership to protect privacy in society? 24