Report warns of dangers of remote hearings

Photo by Chris Montgomery on Unsplash

The family justice system appears to be basking in the (relative) success of remote and hybrid hearings as a means of retaining a basic service during the Covid-19 pandemic, and possibly as a blueprint for the future of the courts.

But is there a blot or two on the horizon (or perhaps even closer), as reported today by Legal Futures?

As they explain, a report by the Surveillance Technology Oversight Project (you guessed it: ‘STOP’), an American organisation that “litigates and advocates for privacy”, warns of the dangers of what they call ‘virtual justice’. Some of these dangers are already obvious, such as technological issues (e.g. internet outages), and lack of available technology in poorer households. However, two issues may not be so obvious:

Firstly, violating party and witness rights, through the potential for rebroadcasting, recording testimony, and photographing.

Secondly, the use of ‘deepfakes’, which would enable witnesses to falsify evidence, and also allow litigants and lawyers to cast doubt on video or audio that is legitimate. For the uninitiated, ‘deepfake’ is defined by Wikipedia as “synthetic media in which a person in an existing image or video is replaced with someone else's likeness”. I understand that the technology is still in its infancy, but could soon be easily available.

The report mentions some ‘best practices’ that can address some of these issues, but I wasn’t particularly convinced. OK, I am no tech wizard, but the thought of evidence in sensitive and private family proceedings being publicised or manipulated certainly scares me.

I suppose addressing the issue of ‘rebroadcasting’ can be dealt with in the same way as any privacy breach now – i.e. contempt proceedings. But that is only after the broadcast has happened. One can certainly imagine irate parties recording hearings and publishing them on Facebook, or wherever.

And as for the issue of deepfakes, I really don’t know how they can be addressed. If the technology is so good that it appears real, then how do you deal with that? I have no idea, but someone is going to have to give the matter some serious thought. Imagine, for example, a grandparent in a children case apparently giving damning evidence about their child, the parent of the children. Such evidence could conceivably sway the court.

I realise that remote hearings are a useful expedient in this time of crisis, but I think many have the expectation that they are now here to stay, perhaps even eventually replacing physical courts entirely, at least for some types of cases. Whatever, their continued use in the family court arena clearly requires greater consideration than I suspect most of us have even imagined.