Rethinking the limits of private justice in the information age

Abstract

With the increased centrality of the information environment in contemporary life, a new social dynamics of private adjudication – of “doing justice by one’s own hands” through the use of technology – has concomitantly emerged. This study evaluates the significance of such a phenomenon in today’s world, considering, in particular, the state’s monopoly of coercive means and its role in the administration of justice, with the final aim of determining if there is a need to rethink the limits of private justice in contemporary legal systems. Adjudication and enforcement of justice have not always been the province of the state. Even in today’s legal systems, deviations from public mechanisms subsist, allowing for private intervention in the enterprise of justice – in what is understood in this study as the Private Justice Gap. The width of this gap is determined by socio-technical arrangements in the information environment – which are in turn the product of architecture, regulation and the influence of several actors, such as the state and internet intermediaries. Contrary to early cyberlibertarian beliefs, regulation of the online environment is a pervasive reality. Inter alia, laws on privacy, data protection, reputation and cybercrime now regulate conducts carried out through digital means, as the cases analysed in this study illustrate. For their significance in representing different aspects of online private justice, the following cases were examined: (i) the impersonation of minors on dating sites with a goal to gather evidence against sexual predators; (ii) the hack of an intelligence firm to expose its dubious practices; and, (iii) a legislative proposal aimed at permitting some instances of “hacking-back”. These cases show that legal treatment of online private justice cases is not always coherent, leading to the need for an integrated approach that focuses on the actions and not the actors. Such an approach must be substantive, in view of the difficulties in ensuring procedural fairness amid the chaotic and unruly practices of digital private justice, which may be seen as a “hostile takeover” of the justice-making process. Thus, the thesis proposes the creation of a private justice defence, which might enable the justification of actions that correct situations of injustice through proportionate measures, with their effects being consequently allowed to endure in the legal order. With this, the Private Justice Gap would be widened to meet today’s reality, affording recognition to the people’s sense of justice and its role in a well-ordered society. However, as private justice would still remain a subsidiary form of action, this widening of the private justice gap would not equate to the elimination of the state’s role in the administration of justice. It would, instead, invite us to see the social contract in a more involved, enlightened and socially responsible light, creating opportunities for future cooperation between state and citizens towards the fostering of a more just society.