We know that the revolt against the advance of technology has begun. Regulation in relation to data-sharing, taxes and liability for content is staring Facebook and the other tech giants in the face – indeed, they appear to realise that regulation may be better than the alternative of constant criticism.
Many people have begun to acknowledge that smartphones and social media bring grave disadvantages - slavery to screen-time, abuse and subsequent separation into tribes on social platforms, diminishing attention spans, the sale of our data to others behind our backs, and a vanishing need to know anything since knowledge is universally available through a click. And is Alexa listening to us?
But a similar revolt against legal technology, not based on economic but on personal grounds, is still an obscure topic. It is true that while the Courts and Tribunals (Online Procedure) Bill was in its Third Reading in the House of Lords last week, a number of government amendments were made, including amendments to ensure that paper processes continue to be available at each stage as a case progresses, to provide greater support for users. But that was not so much a kick against new technology as a sensible provision to ensure that those who do not have access to it are not left out in the cold.
Since legal technology is newer, it is still seen by legal regulators, governments and many lawyers as the welcome answer to unmet legal need and the expense of legal services, whether the solution be online courts or the whole bag of AI-blockchain-bots-platforms and other wizardry, which we are promised on a regular basis is going to revolutionise our lives.
And now comes news from France. A few weeks back it was reported that judges had won an exemption from the general right to use court decisions to analyse future judicial decision-making. Specifically, this is a ban on the use of judges’ identities in published court decisions in order to evaluate, analyse, compare or predict their behaviour – see Article 33 of the 2019 law on the justice programme and reform (LOI n° 2019-222 du 23 mars 2019 de programmation 2018-2022 et de réforme pour la justice). Apparently, the maximum sentence for breach of the clause is a five year prison sentence.
To be clear, there can still be an analysis of court decisions for predictive purposes, but just not tied to the identities of particular judges. This law is believed to be the first attempt to ban legal data analytics in this way, which clearly hampers the analytics arm of the tech industry in France.
Hard on the heels of that revelation comes news that the French national bar, the Conseil National des Barreaux (CNB), has just published a resolution demanding that lawyers have equal treatment with judges on this topic. The resolution goes a bit wider. It refers additionally to another provision in Article 33 that parties and third parties, as well as judicial authorities where their security might be affected, can be made anonymous when the decision is published. The lawyers have demanded that their identities should be treated in the same way in such cases, and also that their identities should not be able to be used for data analytical purposes, just like the judges.
Is this Luddite or progressive? Do judges have a right to data privacy in respect of their official functions? And assuming judges do, what about lawyers? Where does the balance of public interest lie? Some argue that the judicial analytics ban is unenforceable (although I would not want to be the one to face prison for trying). Others say that it is a cynical attempt by judges to keep transparency about their conduct at bay. I often hear solicitors disparage their continental counterparts as being too old-fashioned, and some will see this as further proof of their views.
Regardless of the rights and wrongs of a particular mini-trend in France, it appears to be the first sign within legal tech of the question being asked: what will this technology do to us (without thinking just about market trends)? Governments, regulators and tech prophets have been so taken up with what legal tech can do for us that it appears as if they don’t care what it might do to us, outside economic effects. The revolt against technology in general has recently been more focused on this second question, leading to more people giving up smart-phones and social media for their personal well-being.
Coal, plastics, and oil were all lifesavers and promoters of economic improvement – until they weren’t, as their downsides were revealed. It is all very good that we investigate the use of legal tech, but we should be asking not only what it will do for us, but also what it will do to us personally (outside the economic field).