[Ruwadzano Patience Makumbe is a doctoral researcher under the ERC funded project DISSECT: Evidence in International Human Rights Adjudication at the Human Rights Centre, Ghent University in Belgium.]
User-generated content, such as social media material posted on Facebook, Twitter and Facebook, has arguably become the most depended on source of information by society including the media and civil society for developments on human rights violations. Content posted by witnesses, victims, perpetrators and independent civil society groups provides relatively comprehensive accounts of events. For instance, Syrian opposition activists provided information on the conflict which has been a useful basis for various actors to act upon. It has been pointed out that more hours of video footage now exist of the Syrian conflict than the actual length in hours of the conflict itself. There is also a surging interest by practitioners, lawyers and legal scholars on how digital open source information can be utilized as evidence that meets standards accepted in courts. How digital open source information and investigations has triggered an immense shift in international justice and accountability is receiving so much scholarly and practitioner attention particularly the complexities around using this type of information as evidence in international courts. This blog post contributes to this discussion by highlighting some of the key challenges inhibiting the harnessing of digital open source information as evidence and proposes solutions to address these challenges.
Globally, courts are progressively transitioning to the new machineries proffered by digital technologies and adapting the manner in which law is practiced. Forensic evidence such as finger prints or DNA evidence has for long been used as evidence unlike digital open source evidence. With regards to digital open source evidence such as electronic images, video footage and satellite imagery, its use is still maturing particularly so in human rights related cases. In recent years, there has been changes in the evidential system and digital open source evidence is being used in human rights violations related prosecutions before the International Criminal Court (ICC) and in Europe particularly in Germany, the Netherlands, Sweden and Finland where universal jurisdiction prosecutions of (often) asylum seekers from Syria and Iraq who are identified as alleged perpetrators of international crimes are investigated and prosecuted. Despite the increase in the production of digital open source information, it is not yet commonly used as evidence in courts. However, this is set to shift with the increasing quantities of digital information being gathered by human rights practitioners, lawyers, victims and witnesses that is useful to cases and its widespread availability and accessibility.
The lack of clarity on the use of digital open source information presents challenges and questions to lawyers and human rights practitioners who may potentially want to present it before courts as evidence. This is largely due to it being less tested in human rights courts and also its inherent relatively flawed characteristics. Potential hinderances to harnessing digital open source information as evidence are also experienced by open source investigators and judicial officers. This post highlights three key challenges;
First, digital information is inherently instable. This poses a significant difficulty to ensure that the material can be relied on for evidence, proof and truth in court proceedings. That digital information is generally susceptible to be manipulated is well-documented here, with this danger also having been discussed specifically in relation to international criminal investigations here and its vulnerabilities and mitigation strategies here. Concerns have been raised as to the appropriateness of relying on material that is impermanent, can be easily manipulated and is vulnerable to attack from misinformation and disinformation campaigns. This is even more worrying with tools such as deep fake technologies constantly being improved such that it is difficult to tell when a piece of digital information such as a video has been manipulated. The perceived credibility deficit from which digital information suffers thus is met with a bias position which requires much more efficient authentication and verification mechanisms that can reverse this bias.
Second, digital open source information may vanish in that it is often/always at risk of being taken down by third party companies particularly those that run online social media platforms like Facebook, Twitter and Youtube. Content is usually taken down because it incites or promotes violence. A video containing hate speech or an extra-judicial killing is for example generally considered as restricted material by the third party entities who remove content from their platforms in order to protect their user community against being subjected to harmful content. It is possible, however that this material would have been very precious to victim representatives/human rights lawyers to prove what happened and corroborates or substantiates further the accounts of victims and witnesses.
Once deleted the material is no longer available to the public. Although it is usually retained by the social media company, it is not archived within a system that allows relevant authorities or institutions to access it as part of online investigations. Facebook even tried to fight the application for discovery which the Gambia had filed in June 2020 with the U.S. District Court for the District of Columbia in order to compel it to provide information related to the personal Facebook accounts of Myanmar officials who allegedly had perpetrated human rights violations against the Rohingya. Facebook had argued that complying with the request would violate the Stored Communications Act (SCA) (28 USC §2702) which restricts entities that provide an electronic communication service to the public from sharing the information. However, the Court disagreed and granted the application. Highlighting that only permanently removed content may be divulged, it noted that failure to produce the requested information “would compound the tragedy that has befallen the Rohingya”, thereby recognising and prioritising the need for accountability for international human rights violations. However, a sustainable measure has to be designed to address the uncertainty caused by takedowns while enhancing the already existing responsibility of social media platforms to moderate the information posted on their platforms.
Third, the use of digital open-source information as evidence in human rights courts has not yet been tested so that it remains to be seen how these courts will approach this type of evidence. As digital open source information is increasingly becoming useful in human rights work, more cases will inevitably be developed with digital open-source evidence as primary evidence. This in particular applies to regional human rights courts where the use of digital open-source information as key evidence is still in the early stages. Additionally, unlike in international and domestic criminal courts, human rights courts apply complex and varied evidentiary rules and are not distinctively designed to conduct fact-finding thus they are not equipped with forensic specialists who may be useful in processing digital open source evidence. Nevertheless, testing its use will allow for an understanding of key issues attached to digital open source evidence including proving its credibility, how the metadata and source information should be presented to the court and a consideration of the sufficiency and detail required to adequately ensure that the evidence is considered as admissible and credible by the courts.
The challenges discussed are complex and require multi-stakeholder responses designed to withstand temporality as technology is advancing rapidly. Essentially, the inherent instability of digital information is a key issue that is difficult to address particularly because digital open source information is often user-generated and thus at the risk of manipulation. Online open source investigators have the task to continually keep up with misinformation, disinformation campaigns and deep fake technologies by developing verification and authentication tools as well as archival techniques to preserve digital information. They also require financial resources to adequately meet the changing technological tools. Further, it may be difficult to regulate takedowns but laws that address what social media companies do after takedowns will be useful in a digital landscape. This law can ensure that relevant content removed on social media platforms is archived in such a manner that it is shareable with authorities and credible institutions involved in accountability efforts. The lessons learnt in international and domestic criminal prosecutions are certainly useful in human rights courts and practice. However, the practices cannot necessarily be duplicated as the systems in place for criminal courts are different for human rights courts. This includes the lack of specialised investigative and fact-finding mechanisms in human rights courts. Human rights courts and lawyers have the opportunity to design a working mechanism to deal with the use of digital open source evidence which includes identifying key evidentiary considerations that will be useful in assessing the admissibility, credibility and probative value of digital open source evidence.
Digital open source information will increasingly become important evidence in court proceedings. International justice institutions including both domestic and international courts should be prepared to handle the upsurge in cases that are built on digital open source evidence. Actors involved in justice processes have the opportunity to contribute to the use of digital open source evidence by ensuring that approaches that are designed are responsive and adaptive to the changing landscape prompted by the digital age.
Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.