“Legal systems have been built to fit national boundaries. On the cyberspace, transitional is the ‘new normal’. Coping with this legal pluralism in the absence of appropriate cross-border frameworks is a challenge for developed and developing countries alike.” – Dr Subhajit Basu, FRSA
Dr Subhajit Basu, FRSA is Associate Professor in Information Technology Law (Cyberlaw) at the University of Leeds School of Law, UK. His areas of expertise are Regulation of Emerging Technologies and Cyberspace, Regulation of ‘Internet of Things’; AI, Big Data, Health Data, Autonomous System; Online Harm; Data Protection; Privacy, Freedom of Expression. He is a Fellow of the prestigious Royal Society of Arts, London.
Q. You pursued your law from the Faculty of Law, Calcutta University and practised as an Advocate in India for sometime. Thereafter, you decided to get into academics. Was this a conscious decision? What was the reason behind this shift?
Yes, it was, I had a rather enjoyable time while I practised in Calcutta, mostly at the High Court. I started working as a junior, even when I was a law student. I found everything about the profession quite satisfying, I was never bothered with the long hours, I spent endless hours either in my Senior’s Chamber or in conference with counsels. As you know, the legal profession requires dedication, it is demanding, and the pay is not always great when you start. But the profession can, at times, feel monotonous, and I felt everything moves at a snail’s pace most of the time. As I have written in articles, the Indian legal system is infamous for being clogged and overwhelmed, leading to lengthy and expensive delays; it can discourage even the innocent from fighting. We are taught in the Law Schools that justice delayed is justice denied, but precisely the opposite happens in our judicial system. Some of our laws are archaic, and procedures are overly complicated, making the legal redressal unnecessarily expensive out of reach for most of the people. I started feeling I was making a very limited contribution to the profession (not that anybody cared if I didn’t) and I could not see myself spending my whole life without trying to do something different.
Technology, particularly computers (the Internet was a very new concept in India) at the time, always excited me. I love innovative technologies even now. I was spending more time in British Council Library reading about the Internet, what it is capable of doing, that it is the future and a concept called “Electronic Commerce” (please remember in those days it was still a very nascent concept even in Europe) and more I read about it, more I became interested in it. However, I also found that e-commerce was creating a legal minefield. Law is about enforcement, and e-commerce would have made enforcement nearly impossible in certain areas, particularly in the area of consumption taxation, resulting in inequitable sharing of tax bases between countries. I approached Prof Richard Jones of Liverpool John Moores University who was one of the few academics at that time in the UK who was keen to supervise students interested in research on Information and Technology Law. I was one of the very few students at that time researching Information and Technology Law and became one of the first to do a PhD on the broader subject area. In those early days, most of the academics working on IT Law were actually IP Law experts who developed an interest in IT Law (Cyberlaw as it is now commonly known). In fact, I exchanged several emails with the then IB Minister Late Shri Arun Jaitley discussing and raising my concerns about that time, India’s proposed Information and Technology Act 2000. Incidentally, my co-authored articles on the Indian legislation again were among the first written on the subject from an academic point of view, first one published in 2003 (https://works.bepress.com/subhajitbasu/9/) and the second one published in 2005 (https://works.bepress.com/subhajitbasu/4/).
Q. You have done your Bachelors from India and PhD from Liverpool John Moores University. You are now an Associate Professor at the University of Leeds, teaching Information Technology Law (Cyberlaw). What significant difference do you experience in the field of legal education in India and in the UK? Where do you think India needs reforms, as far as legal education is concerned?
I am an Associate Professor in Cyberlaw. I am Chair, of British and Irish Law Education and Technology Association and Managing Editor of International Review of Law Computers and Technology (one of the oldest and perhaps the most reputed technology law journal in Europe)
Once started doing my PhD, I was also supposed to do teaching as part of it, very soon I realised that it is something I really enjoy doing, would love to continue to do if I get an opportunity (getting an academic job in the UK was the burning issue, it was not easy then and it is not). The legal education during my Law School days and it continued for a long time even in the National Law Schools as I understand from my close connection with few of them focused (to some extent still focus) on spoon-feeding the legislations, learning them by hard so to say. It rarely inspired/ inspire students to be critical thinkers, question the law, think about the reasons behind the law, understand the policies (but there must be policy-driven legislations for that purpose). Not many law academics or students would read about parliamentary debates that went on during passage of a Bill or read committee reports. Then again, not many whitepapers or consultation papers get published before legislation (I would consider the Data Protection Bill to be an exception).
Research-focused teaching or research-inspired teaching rarely happens in India, and where it happens, the academics are incredibly reluctant to push the boundaries. I have examined PhD thesis (a good few them over the years) from India, which I thought could have been a lot better if students had thought a bit outside the box. Indian policymakers and the government should ask itself why so many illustrious international Universities have academics of Indian origin shining and enriching the Global North instead of working in the reputed Indian Universities. Legal Education needs to promote rational and tolerant thinking. The delivery (teaching methods) of the education needs to change. The quality of research among academics needs to improve, and the multidisciplinary approach which the National Law Schools have developed needs to improve.
Q. Since your core expertise is Information Technology Law (Cyberlaw), we would like to understand it from you, that technological innovation is reshaping the world, however, new developments provide new opportunities to offenders. New methods of committing frauds, cyber defamation, cyber terrorism, transnational organised crimes, frauds relating to intellectual property like copyright, domain names, copy theft etc., have come into existence. In your view, how can we modernise the legal framework for this new digital era and regulate cyberspace?
Technology itself is not the problem, rather it is the use of the technology. Some if not all of these deviant behaviours/crimes always existed in society, cyberspace made them for more efficient (for the lack of a better word). There is no question that new technologies do disrupt communities, families, and lives, but also that historically most of this disruption has been for the better. Most of the time law is reactionary, enforcement dependent. Instead of thinking a “law” as the only mean of regulation which should think about “regulatory framework” and a good regulatory framework will consider safety, explainability, fairness and accountability, for example, GDPR prescribes ‘privacy by design’. In this technology-driven, innovation-driven world law will always play the ‘catch-up’. The question is, how can regulators respond to both challenges and opportunities presented by this technologically driven space without compromising its effectiveness? I am always pro-innovation, and I always argue for the development of regulation which does not have a negative impact on innovation (this is why I like GDPR, legal frameworks need to flexible enough).
I also think there is another problem we overlook, you know legal systems have been built to fit national boundaries, on the cyberspace, transitional is the ‘new normal’. Moreover, coping with this legal pluralism in the absence of appropriate cross-border frameworks is a challenge for developed and developing countries alike. The challenge is not necessarily how to establish the Rule of Law in Cyberspace but how to cope with simultaneous “Rule of Law”. For example, every country seems to have its own “idea” about regulating Facebook, Twitter. The problem is when Charlie Hebdo publishes a cartoon, its impact can be felt all around the world! So, in order to re-enforce sovereignty, we have faced a “legal arms race” in which new laws are passed in an uncoordinated manner around the world—and creates its dangers and the same time doing nothing is not an option also. However, as I said before, developing legislation will not solve much unless we find ways to enforce them.
Q. Do you think Artificial Intelligence can transform the legal industry?
The use of AI within the legal sector has grown significantly over the past decade, with AI tools and techniques being utilised in a plethora of different ways to aid the legal process. Such systems can be seen operating in a number of contexts and in myriad ways. These include the use of AI to facilitate traditional negotiations by allowing parties to weigh the value, monetary or otherwise of a presented resolution so as to quickly and automatically settle low-value disputes or otherwise provide information on similar past cases. It could even predict the outcome of any cases and help judges in the courtroom.
As an example, some Chinese courts are piloting AI through the collection and comparison of cases for judges to use when drafting their decisions. In the USA, a study has been developed through the use of AI in the courtroom to identify ‘deception’. It is possible to argue that AI is a ‘disruptive legal technology’, but it will significantly contribute to a ‘shift in the legal paradigm’. However, the question then naturally arises concerning what potential adverse effects might be witnessed by applying AI to the judicial. Substantial questions exist regarding whether or not AI in legal systems can be employed in such a way that does not substantially disadvantage litigant parties. No technology can be employed without some inadvertent effect. This is particularly true in the context of AI: if it is accepted that AI system can reach the right decision faster and better than human judges, how could it be guaranteed that the data used by AI to draft a judgment is collected fairly and free of bias? The question then naturally arises in regards which remedies are available so as to ensure the litigant’s right are protected.
Q. When we talk about India, where free speech is not absolute, how do you think freedom of speech and expression can be protected in an age of social media?
The Indian government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics of the government. The existing laws in India fail to distinguish disinformation from freedom of expression. Also, the inability to differentiate between political opinion and deceit or political vindictiveness makes it challenging to regulate it. So far, instead of genuinely trying to restrict the dissemination of ‘disinformation,’ the hegemonic government is focused on restricting freedom of expression and has proposed laws aimed at undermining privacy and stifling the voices of dissent.
Q. The coronavirus pandemic has probably hit educational institutions the most. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic?
Incidentally apart from working-from-home nothing much has changed in my work life. UK Universities are well equipped to deliver courses online, and this capacity was built over a long period of time. At the start of the national lockdown in March, the University of Leeds moved its teaching online, and we are still following a hybrid module of delivery — that is, face to face where possible and otherwise online. It is not ideal, as an academic, the interaction with the students is essential and talking to a camera is not same as giving a lecture in a lecture-theatre or supervising PhD students over Microsoft teams or Skype. However, the quality of teaching or supervision has not suffered. We have tried our best to minimise the disruption, and we are providing all the help we can and is necessary for every student. We are keeping constant contact with students.
Interestingly I have attended several online conferences (a lot more than I would have), delivered more lectures around the world than I would have in this period. As Chair of British and Irish Law Education and Technology Association, we were one of the first organisations to move our Annual Conference online and run it for free for the delegates.
I have submitted written evidence to the Science and Technology Committee and the Human rights committee of the UK Parliament. https://essl.leeds.ac.uk/law/news/article/1215/dr-subhajit-basu-submits-written-evidence-to-parliamentary-committees-to-answer-questions-relating-to-covid-19-policy.
I was also interviewed and also participated in a Webinar on COVID19 and BAME community. https://essl.leeds.ac.uk/law/news/article/1230/dr-subhajit-basu-interviewed-by-asian-voice-about-covid-19-and-the-bame-community.
I was interviewed by CNN Bossiness on UK’s Contact Tracing App. I have co-authored an article on COVID19 and International Law https://essl.leeds.ac.uk/law/news/article/1222/dr-subhajit-basu-and-phd-student-natasha-gooden-write-opinion-piece-on-the-role-of-international-law-in-relation-to-international-inquiry-on-covid-19
At a personal level, several of my friends and members of my family are affected by COVID19 and as you probably know in the UK the pandemic has hit the BAME community the hardest economically, socially and health-wise.
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