4IR and the Law

Introduction

The Fourth Industrial Revolution (“4IR”) predominated for some time, and the COVID-19 pandemic fast-tracked its acceptance. Within a few months, the whole world had to adapt to remote working, learning and living.

4IR and COVID-19 changed the way we do business, work, govern and live. South Africa, like many developing countries pre COVID-19, was preparing for the future and the impact of the 4IR, taking into consideration socio-economic factors, to ensure that all, not just the privileged would benefit from technological advances. Technological innovation at its core should grow economies and uplift society.

“The internet has become a fundamental part of the contemporary society. It is a platform to realise both collective and individual rights.”[1] Due to the internet’s many “…advantaged and wide-ranging benefits, the importance of having a right to internet access is slowly and steadily being considered all around the globe.”[2]

Philosophical and abstract sense of the law and technology

The terminology used in respect of current legal technology can be confusing, the change in the use of language/terminology can assist in adapting to the present circumstances. Pre COVID-19, while many developing countries were getting ready for the 4IR, first world countries had already adapted, as a result of the infrastructure available and the regulatory regimes across various jurisdictions.

South Africa was already making inroads by, for example, the implementation of the online platform called Caselines in the Gauteng jurisdiction, which contains two divisions of our High Court. Caselines provides the electronic infrastructure for attorneys, court officials and advocates to have access to court files electronically. This has resulted in our courts conducting virtual, paperless hearings.

The link between law and IT is much more prevalent now than it was 5 years ago because lawyers are now forced to adapt to running a virtual and electronic practice and this may be the new norm for the foreseeable future.

As David Taylor puts it, “once we are free from preconceptions and misconceptions about the relationship between law and IT, we can understand the dynamics between them better and so be better lawyers: – We can give better advice to our clients – We can use technology better in our practice both now and in the future”[3]

There are “technical solutions to legal problems”[4]. One would think, for example, that by copying data from one platform to another, viewing what has been copied is sufficient to determine its accuracy. For example, if time is not permitted to make a detailed inventory by a sheriff who is executing an interim Anton Pillar Order and one “…renders the duplication thereof impractical, the sheriff must either not remove the items or remove it in a container sealed by him. If the sheriff removes the items in a sealed container, he may not open the container except to give effect to the interim order.” [5] We ought to be practical when determining a technical solution to a legal issue, especially when one looks at the interpretation of a court order, which is impacted by technology.

Concluding remarks

“As with any other business, lawyers seek to gain the advantage over their competitors. Increasingly IT is used to gain an advantage. It offers the potential to work faster and more efficiently, and to provide a wider range of services, all at a lower cost.”[6]

Regulation, combined with significant enforcement, is required to guide society’s behaviour and safeguard the rule of law. The global regulatory environment is complex and requires specific tailoring to various areas, technology is moving at a rapid rate, and therefore regulators should rather embrace the 4IR than be baffled by uncertainty.

Dhahini Naidu
Director
Commercial Litigation

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[1] Anamika Kundu and Ashul R. Dalmia “A case for recognition of the right to internet access in the age of information” (2020) Journal of Indian Law 7 Society xiii-xxvi at XIV

[2] Ibid

[3] David Taylor “Chapter 2: Legal Informatics” in Sylvia Papadopoulos and Sizwe Snail (eds) Cyberlaw @ SA III: The Law of the Internet in South Africa at 9

[4] Ibid

[5] On Line Insurance Brockers Exchange (Pty) Limited v Insure Link Short Term Insurance Consultants (Pty) Limited formerly known as Bonafide Short Term Insurance Brokers (Pty) Limited and Others (16566/05, 05/16566) 2005 ZAGPHC 127; 2006 3 All SA 577 (W)

[6] David Taylor op cit at 3