Digital Divides in Access to Justice

By: April Lount, Student at the Faculty of Law, University of Manitoba

Access to Internet is a Precursor for Access to Justice

In 2007, Chief Justice McLachlin famously called on the legal community to recognize a critical need for access to justice solutions across Canada.[1] Since then, access to justice has become a focal point for government, communities, regulators, law associations, researchers and educators. Virtually every legal stakeholder is now in chorus with her sentiments. Initially, the focus of access to justice work centered on refining court processes and expanding access to legal representation. In more recent years, there has been a concerted focus on digital solutions and looking at how innovative online strategies can contravene sociological barriers and create new “pathways to justice.”[2] However, moving access to justice solutions online effectively turns access to internet into a precursor to access to justice. Undeniably, the digital world has greatly expanded avenues for access to justice by making legal information more accessible and intelligible via a host of online resources. These advancements are substantial. However, the corollary effect puts those without reliable access to internet in an increasingly vulnerable position and risks exacerbating pre-existing inequities.

Implications

The impact this is having on Manitobans remains unclear, but insights can be drawn from research conducted in British Columbia. In 2021, Legal Aid BC published “Achieving Digital Equity in Access to Justice” (the Report), a report on how access to internet intersects with access to justice in the digital era. The Report highlights “digital equity as key for access to justice” and identifies multiple levels of “digital divides” that are contributing to an inequitable landscape.[3] Borrowing heavily from Dutch scholars Jan van Dijk and Alexander van Deursen, leading voices in the discourse surrounding access to technology and inequity, the Report is concerned with testing their thesis: disparities in access to technology not only perpetuate inequality, but actually exacerbate pre-existing systemic social inequalities.[4] Van Dijk and van Duersen find these disparities emerge out of three levels of digital divides: 1) “first-level” is physical access; 2) “second-level” relates to internet skills and usage; and 3) “third-level” accounts for “outcomes of Internet use or tangible benefits.”[5] The Report collapses the second and third categories into “material access”, “the ability to equitably use and benefit from online resources or services,”[6] but similarly finds that access to technology is a significant barrier to accessing access to justice resources. 

The research methodology for the Report uses survey data of BC residents to determine access to technology, online activities, and attitudes towards seeking legal help online. The survey data reveals 44% of people in lower income households and 53% of people in very low-income households face one or more barriers to use the internet.[7] Physical access and cost are the most cited barriers, but barriers also commonly manifest in the form of digital skill, trust, health/disability, and literacy.[8] Importantly, most of these barriers have the potential to impact both physical access as well as material access. “Digital technology access is best understood as a gradient” where intersecting socio-economic factors are largely determinative of the benefits that can be obtained from online resources.[9] For example, “while seniors are known to go online less often, age plays a more defining role for people with lower household incomes.”[10] The commonality across the data is that household income affects how other factors are expressed. In low-income households, other potential barriers to access to internet are typically exacerbated, ultimately confirming van Dijk and van Deursen’s findings.

In the context of access to justice, the Report concludes that this has further compounding effects. Pre-existing “dynamics of advantage and disadvantage” create a “double set” of barriers in the context of access to justice.[11] The “double set” refers to: 1) traditional access to justice issues, including legal costs, technical knowhow of legal processes and terminology, stress, trauma, confidence, systemic discrimination; and 2) digital equity issues, including access to technology, skill, trust, health and (dis)ability, language (and/or) literacy, design and content. “These issues can occur before seeking help, during online searches, and while using digital legal resources.”[12] In sum, the same people who are burdened with traditional access to justice issues—primarily cost—are then saddled with the matrix of disparities in access to technology in a world that is increasingly moving resources to an online space.

Recommendations

            In his 2005 book “The Deepening Divide: Inequality in the Information Society” van Dijk implores governments to employ policy interventions to reduce the inequality gap in the information age, largely through broadening internet access. He points out the assumption that the sheer existence of information and communication technologies (ICTs) automatically function to create a more equitable society and empower individuals is misguided.[13] Rather, “the notion that ICT will level out difference and lead to greater social equity should not be taken for granted, as many social groups remain excluded or are able to use these new technologies in very limited ways.”[14] Van Dijk notes that when the benefits of technologies are not distributed equally in a society this in turn leads to unjust outcomes in the distribution of resources and opportunities. In many instances the proliferation of ICT has not had the effect of reducing inequity, but instead has worsened pre-existing divides, particularly along the lines of socioeconomic status, education, age, and geography.[15]

            The Legal Aid BC Report recommends the approach of meeting people where they are. “This means designing resources and options with an awareness that audiences have varying levels of digital technology access and comfort.”[16] In practice, meeting people where they are demands multiple channels for accessing legal help, including text/messaging, phone, web chat, brochures or pamphlets, and in person office locations.[17] The convenience and low cost of maintaining and keeping resources up to date online is significant, especially in comparison to in-person services or printed materials, but these conveniences must be weighed in respect of delivering material access for the intended audience. “The importance of supportive, one-to-one assistance with digital legal resources and legal issues emerged as a key finding across all components of [the] study;”[18] particularly for “residents who face more fundamental barriers related to technology access.”[19] This stresses, once again, that while online legal resources undoubtedly create new pathways to justice, they are not a stand-alone solution.


[1] Beverley McLachlin, “The Challenges We Face” (Remarks of the Right Honourable Beverley McLachlin delivered to the Empire Club of Canada, Toronto, 8 March 2007), online: Supreme Court of Canada < https://www.scc-csc.ca/judges-juges/spe-dis/bm-2007-03-08-eng.aspx> [The Challenges We Face].

[2] J McGill et al, “Emerging Technological Solutions to Access to Justice Problems: Opportunities and Risks of Mobile and Web-based Apps” (2016) at 2, online (pdf): University of Ottawa < https://commonlaw.uottawa.ca/sites/commonlaw.uottawa.ca/files/ksg_report_-_mcgill_et_al_oct_13_final_to_send_to_sshrc.pdf> [Emerging Technological Solutions to Access to Justice].

[3] Kate M Murray, “Digital Equity in Access to Justice: Literature Review” (2021) online (pdf): Legal Aid BC <https://legalaid.bc.ca/sites/default/files/2021-07/KMurray%202021%20ADE%20Literature%20Review-Full%20Report-FINAL.pdf> [Digital Equity Literature Review] at 6.

[4] Jan van Dijk, The Deepening Divide: Inequality in the Information Society (California: Thousand Oaks, 2005);Jan van Dijk & Alexander van Deursen, “The first-level digital divide shifts from inequalities in physical access to inequalities in material access” (2019) 21:2 New Media & Society 354.

[5] Ibid at 355.

[6] Ibid.

[7] Supra note 3 at 2.

[8] Ibid at 2.

[9] Ibid at 7.

[10] Ibid at 5.

[11] Ibid at 10.

[12] Ibid at 17.

[13] Supra note 4 at 2.

[14] Ibid at 4.

[15] Ibid at 14.

[16] Ibid at 31.

[17] Ibid at 32.

[18] Ibid at 30.

[19] Ibid at 33.

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.

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