Position Statement on Technology and Law: Lord Hodge's Speech
Special Take by Ankur Pandey, Associate Editor on Lord Hodge's Speech from the UK Supreme Court.
We live in an era defined by its rapid technological advancement. The exponential increase in computational powers, data generation, data availability at affordable prices, and the development of increasingly sophisticated software services have impacted our social institutions. Artificial Intelligence is one such development that seeks to perform tasks that so far required human intelligence or even tasks that are beyond human capabilities. The progress in technology has contributed immensely to improve the efficiency and effectiveness of various processes but at the same time, we are at an increased risk of cyber threats, surveillance, or AI bias. One way or the other, these cutting edge technologies will disrupt the world as we know it. It is imperative that we not only have statutes to regulate these changes but we should also embrace the opportunities technology offers for the betterment of the legal practice and justice system.
The technological revolution that we are witnessing has outpaced the developments in commercial law. With newer forms of transactions involving technology, like the self-executing smart contracts which do not require human intervention, the traditional concepts of consensus ad idem will need to be re-examined. Contract Law will have to specify whether the decision to use AI for transactions implies a consent to be bound by contractual deals the AI program makes. Similarly, in tort law, what if the breach of duty and the resultant injury was caused by an autonomous machine? Even in torts which involve intentional infliction of harm, as in defamation, on whom the liability of such harm will be imposed? Will it be the software developer or the user of the AI program? The law will have to answer if it is even fair to impose liability of acts of an autonomous machine on a human being. Additionally, the law of property will have to undergo amendments to incorporate the creations of AI- who owns copyright over an artwork created by an autonomous machine? The territorial nature of intellectual property laws will further complicate the matter, with various jurisdictions denying rights to non-human creations. Thus, to facilitate transactions across the borders, international cooperation over such statutory amendments is essential because ultimately technology will help expand the market, increase efficiency, and reduce the cost of transactions. The ultimate aim of commercial laws is to offer legal certainty to transactions, as it reduces disputes and facilitates business. To promote certainty the legal framework must adapt itself to evolving technology and regulate the novel forms of transactions.
In addition to law, the legal profession needs to adapt to the advancement in technology, and the process has already begun. Several AI-based legal research tools, software to perform document reviews and due diligence are being used by various law firms. Automation saves a lot of work hours, improves efficiency and gives more time to the legal practitioners for strategic tasks. The courts are yet to invest adequately in digital infrastructure, but the live streaming of court proceedings in a few jurisdictions is a welcome step to improve transparency and accessibility. The idea of Online Solutions Courts to resolve civil disputes of modest value is a proposal worth considering. In OSC, the claimant is asked successive questions by an AI platform, based on which a legal claim is framed, doing away with the complex procedural hurdles. Another idea that has gained significance in times of COVID-19 is of Online Courts, which allows lawyers to connect remotely and plead their cases. A country like India has for long debated the idea of Regional Benches of the Supreme Court to make justice accessible and affordable to the underprivileged sections of the society. Online courts can help resolve the issue by reducing the economic cost of travel, improve efficiency and reduce the enormous backlog of cases.
It is not yet known to the fullest possible the extent how the advancement in technology will impact the laws and legal profession. But it is certain that the impact will transform the legal system for good. There is a lot for the legal profession and judiciary to take leverage of the technological tools in enhancing the efficiency and accessibility of the justice system. But along with the opportunities, novel complications and dilemmas will also crop up, and the law needs to keep abreast of these challenges to be able to regulate them. It is imperative that the law-making bodies consult with legal and technology professionals and bring in necessary legislative changes to adapt, accommodate and regulate the emerging technologies.