Bigtech operations under control

April. 21.2022 By Benard Mulwa. The Chief Justice and the President of the Supreme Court of Kenya Hon. Martha Koome, has expressed concerns to regulate Bigtech operations. Hon. Martha Koome was speaking during the opening ceremony of the Southern African Chief Justices Forum (SACJF) held today in Nairobi. The Chief Justices from 11 African countries Kenya, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Tanzania, Uganda, Zambia, Zimbabwe and Republic of Seychelles are in the country to attend the Management Committee meeting of the SACJF Forum and also the Judicial Symposium on Digitisation and Internet Governance. Hon. Martha Koome said it is a reality that today, the importance of digitization and the internet for social and human development cannot be ignored. The digitization of government services, including judicial services, is increasingly considered a key ingredient for modernization of public and private sector processes and crucial for enhancing efficiency in service delivery. Indeed, it is now widely accepted that digitization is crucial for the realization of the goal of agile government processes that are expeditious, efficient, flexible and responsive. Our Judiciaries are testimony to this: in recent times courts across the region have embraced virtual courts, e-filling and electronic case management systems resulting in improved efficiencies and cost effectiveness of the justice system. “Across various sectors of the society and economy, we have witnessed the integration of the Internet, software, social media platforms, algorithms, and digital devices into our daily lives and decision making in the public and private sectors” she said. What this means is that, in the near future, many private and public agencies look set to transition to being “fully digital of partly digital” in their operations. Africa has not been left behind in this transition and I am certain we can all point out examples of how digital technologies and the internet have revolutionalised how we operate and access services. In such a context, the governance of this brave new world brought about by the embrace of digitization and the internet becomes crucial given the impact of digital technologies on the relationship between citizens, private enterprises, and the state. Even as we celebrate the advance in social and human development linked to the embrace of digital technologies and the internet, we must acknowledge the reality that digital technologies and the internet also have a “dark face/or dark side” as they carry with them significant risks. It is a reality that Big technology companies (Bigtech) that are behind the digital technologies that we rely on have amassed significant power due to our reliance on these technologies. For example, private technology platforms such as Amazon, Google, Facebook, Apple, Uber, Twitter, YouTube, Microsoft, and Airbnb effectively control global access to information, services, and products. They play a significant role in setting the parameters of access to markets and freedom of expression through their proprietary algorithms. Given the immense power amassed by these private entities, there is undoubtedly a need for regulating their operations. It has also become increasingly apparent that in politics, social media has at times been used to divide societies and polarize political systems. This has been a function of the deployment of hate speech, fake news, and disinformation through social media platforms. This concern heightens in most of the countries in the region during electioneering periods. Related to this, is the abuse of digital technologies and the internet for abuse of children, who are a vulnerable group in the society. This often takes the form of child pornography and child trafficking. In such a context, the need to oversight and regulate the use of digital technologies and the internet becomes imperative. Given the anxiety and concerns that I have just highlighted, the question becomes whether there are ways to navigate and respond to this state of affairs in a manner that respects human rights norms and standards? In my view, we should approach the “digital world” as a global common or public good (i.e. essentially, a common or shared commodity, asset or resource). Under such a conception of the “digital world”, we would see the problems associated with digitization and the internet; such as cybercrimes, misinformation, political propaganda, and the propagation of hate speech, as “polluters of our common/shared resources”. For example, the production of disinformation by groups in social media pollutes the environment, creating ethnic or racial tensions, and polarization among groups in society. This therefore makes it necessary to regulate the development and use of digital technologies and the internet just in the same manner as that adopted in tackling the problem of “polluters of the environment” which is also a shared common resource. This approach to the “digital world” resonates with the influential and widely known concept of “The Tragedy of the Commons” that was popularized by Garrett Hardin whose import is that ungoverned consumption or exploitation of a shared resource (such as pasture) by individuals seeking to maximize their individual gain often has the consequence of running or destroying the common resource. This is the tragedy that we must avoid as we seek to exploit the common resource that is the “digital world”.   The digital world demands governance mechanisms that are democratic, participatory, deliberative, and inclusive. This involves embracing stakeholder involvement in designing the governance frameworks.   The aim should be to ensure that internet is a digital commons that is used in a way that fosters respect for human rights, and social justice, and promotes transparency and accountability in governance and the society. The Judiciary becomes crucial in enforcing these standards in disputes regarding the justification, legality and proportionality of state measures such as “internet shutdowns”. In my view, judicial intervention in disputes over the governance of the digital world ought to take into account and promote human rights, social justice and the imperative of public participation and input. It is such an approach that ensures that the governance of the “digital world” is geared towards promoting the common good and produces public benefits. To conclude, we are at a critical juncture regarding our use and control of digital technologies and the internet and this demands that we put in place governance frameworks that simultaneously oversights the digital world and also harness digital technologies and the internet to promote human development.   My challenge to this Judicial Symposium is for us to think through how to design regulatory frameworks and adopt approaches to judicial intervention in disputes over digitization and internet governance that ensure digital technologies and the internet work for the greatest benefit of the society.   This joint symposium model as a dialogic tool to advance cooperation and judicial exchanges. -End.