Judicial Response to Legal Issues Related to Digital Economy

Adrian Dudley Saunders, President of Caribbean Court of Justice

It is a distinct pleasure to have been invited by the Honourable President and Chief Justice of the Supreme People’s Court of the People's Republic of China, His Excellency Zhou Qiang, to bring these brief remarks regarding Judicial Responses to Legal Issues Related to the Digital Economy. My presentation will of course be confined to the experience within the English-speaking Caribbean.

Over the past few years, the development and application of digital technologies have widened and deepened in scope, radically transforming the manner in which commerce and business are transacted. The expansion of the digital economy, its supportive infrastructure and usages have simply accelerated exponentially over the past two years.

As this phenomenon plays out before our eyes, it is imperative that keen attention is paid to ensuring that this process evolves under the rule of law, especially as part of the rationale behind the development of some of the enabling technologies currently deployed was precisely to avoid certain forms of regulation.

In my view, the rule of law in this context must mean that firstly, an enabling and modern legislative regime is fashioned by the State to regulate the various features of the digital economy; secondly, that this regime aims at eliminating abuse on the part of powerful actors - whether dominant economic enterprises, technologically adept persons or even the State itself; thirdly, that this legislative regime should seek to strike an appropriate balance between the interests and rights of the individual and those of the State; and lastly, that opportunities are afforded to aggrieved persons for review by the courts of the application of the relevant rules.

The challenge to create such a digital space under the rule of law has not escaped the English-speaking Caribbean. A prime example here is the launch by The Bahamas of its fiat-based, Central Bank issued digital currency, commonly referred to as 'Sand Dollar'. In setting about to launch this currency, The Bahamas opted to develop simultaneously both the required enabling technological infrastructure as well as a supporting legislative framework that would accommodate and regulate not only the novel currency but also other forms of digital assets.

Throughout the region generally, however, it is fair to say that the rapid pace of technological developments in the digital economy has not been matched by appropriate legislative interventions. This has meant that English-speaking Caribbean courts have been constrained to apply existing principles and remedies and to use available tools to address the novel legal issues and to bring them under the rule of law. I can refer to three such instances.

One of the primary enablers of the digital economy is digital identification. Jamaica made an attempt to establish a legal framework for capturing, verifying and using data for this purpose. In 2019, however, a multiple judge first instance court struck down, in its entirety, the legislation that was enacted to provide for a national identification system that would compel citizens to provide biographic, biometric and demographic data. The court determined that there were insufficient safeguards against abuse and misuse of the data collected. The Government did not appeal but went back to the drawing board and has promulgated a new Act taking into account the earlier decision of the court.

Last year, a court in the British Virgin Islands was faced with the novel issue of whether cryptocurrencies were to be treated as property in the context of the liquidation of a company. There were no laws that explicitly addressed the issue, but the court adjudged that the relevant cryptocurrencies were not only to be given the status of property but were to be treated as property to be protected by the liquidators so as to ensure maximum realisation of the company’s assets for the company's benefit and in the creditors’ interests.

In a more recent decision, handed down earlier this month, the Eastern Caribbean Supreme Court had to grapple with a case in which a company wished to protect cryptocurrency holdings of its clients. Those holdings or tokens had been stolen by hackers. The company wished to prevent the dissipation of those assets and to seek recourse against the anonymous hackers. The court extended its grant of a worldwide freezing order against the unknown persons who were identified only by their ownership of identified digital wallets and as well by a specified email address. These defendants had used the digital wallets to receive and make use of the stolen tokens.

This was an instance of the court falling back on available mechanisms to accommodate the interests of a company that had undoubtedly suffered reputational damage from the unauthorized intrusion into their affairs and the misappropriation of their assets. The freezing order potentially preserves for the company and its clients the chance of recovering the stolen tokens.

To summarise, these cases demonstrate that although judicial responses (to legal issues arising in the context of the digital economy) have been hampered by the absence of an enabling legislative framework, courts have nonetheless focused, as best they can, on affording protection to digital assets and in granting appropriate relief to persons with interest in those assets, where appropriate. Courts have also sought to guard against measures which infringe the fundamental rights and freedoms guaranteed to individuals in the face of the ever expanding need to have digitised and digitally available identification information about persons seeking to engage in business. In the face of the developments in the digital economy overtaking the way we do business, falling back on basic principles, courts in the region have demonstrated a willingness to use innovative measures to create solutions they consider to be just, fair and appropriate.

Adrian Dudley Saunders

President of the Caribbean Court of Justice Caribbean Community

The Hon. Mr. Justice Adrian Saunders, a native of St. Vincent and the Grenadines, holds a Bachelor of Laws degree from The University of the West Indies (Cave Hill Campus) and a Legal Education Certificate from the Hugh Wooding Law School in Trinidad & Tobago, which was received in 1977. He began his legal career as a barrister and solicitor in private practice in his home country.

In 1990, he established the firm of Saunders & Huggins before being invited to join the Eastern Caribbean Supreme Court (ECSC) High Court Bench in 1996. On 1st May 2003, Mr. Justice Saunders was appointed to the ECSC’s Court of Appeal and served as acting Chief Justice between 2004 and 2005. While at the ECSC, Mr. Justice Saunders developed a passion for and was deeply involved in various judicial reform efforts. These included the introduction of court-connected mediation in the Eastern Caribbean and the development of that Court's first Judicial Code of Ethics. He also served as Chairman of the ECSC's Judicial Education Institute from 2001 to 2004. His work in judicial education continued with the Commonwealth Judicial Education Institute (CJEI).

In 2005, Mr. Justice Saunders was among the first cohort of judges to join the Caribbean Court of Justice (CCJ) bench. During his time with the Court, Mr. Justice Saunders has contributed greatly to regional judicial outreach and judicial education efforts and is a founding member of the Caribbean Association of Judicial Officers (CAJO) and served as the organization's Chairman from its inception in 2009 until 2018. As Chairman, in collaboration with UN Women, he played a leading role in developing and promoting the adoption of Gender Sensitive Protocols for Judicial Officers for various Caribbean judiciaries.

Due to his active engagement in advancing judicial integrity, Mr. Justice Saunders was appointed to serve on the Advisory Board of the Global Judicial Integrity Network by the United Nations Office on Drugs and Crime's (UNODC) Global Programme for the Implementation of the Doha Declaration.

Mr. Justice Saunders' interests also extend to the area of court administration where he had adopted an active role in the CCJ's public education and other strategic projects. He also led the development of the Court's first Strategic Plan in 2012 and currently chairs the implementation committee for the Strategic Plan for 2018-2023.