Free Access to Legal Information:
Roles in the expansion of liberty,
democracy and the rule of law
Graham Greenleaf AM
Professor of Law & Information Systems,
UNSW, and Co-Director, AustLII
CommonLII Visiting Fellow, IALS 2011-12
Overview
Free access to legal information …
§ Its global progress
§ What is it?
§ Impediments to it
§ Its roles in liberty, democracy and the
rule of law
§ Its future global potential /aspirations
A. Global progress after
(only) two decades
1.
2.
3.
4.
20 years ago
LIIs, FALM, and networks
Outside FALM - goverment LIIs
Alternative?: ‘Google Lawyer’
20 years ago
Australia as an example
 1983-92 monopoly over electronic provision
 Dial-up services
– Commercial service (CLIRS/Info-One) charged up to
$720/hour for some bare case law
– Never had more than 4 concurrent users
– Federal government service charged $100/hr+
 CD-ROMs
– Many $100s for each re-issue of bare case or legislation CDROMs
No useful access for either profession or public
The LIIs and FALM
 Legal Information Institutes (LIIs)
– provide free access to multiple sources of legal
information; a re-publisher, not the source
– LII (Cornell) the 1st (1992); AustLII the 1st LII with
national coverage (1995-99)
 Free Access to Law Movement (FALM)
– has 41 members, mainly LIIs, formed 2002
– subscribe to Declaration on Free Access to Law
– Many from developing countries: eg Pacific
Islands, Liberia, India, Morocco, Kenya, Mexico,
southern Africa
Seven pillars of a wise LII
Types of free-access content
1.
2.
3.
4.
5.
6.
7.
Legislation
Case law
Treaties
Law reform
Open legal scholarship
Citators for 1-5
User-generated content of value
LII Networks/Portals
 Portal = searches over collaborating LIIs + content
located on portal
– Users sent back to original LII for results
 AustLII operates 4 LII portals in collaboration with
other LIIs:
– AsianLII: 28 Asian countries (3 LIIs)
– CommonLII: 56 Commonwealth countries (11 LIIs)
– WorldLII: 100+ countries & international law (17 LIIs)
– LawCite: Citation data from WorldLII partners + others
– + a proposed EuroLII of 50 countries
Scope of LII networking (2)
 Table of LII networks
 What does WorldLII cover?
– 1,400 databases from 183 countries
– At least 2M cases, increasingly historical
– Legislation databases from over 100 countries
– 4M citation records in LawCite
– Non-trivial usage: AustLII 600K/day
– Predominantly common law so far …
LII Networking/Portals (3)
 What is the significance of these portals?
– Comparative law searches eg WorldLII
– Cross-system links and citations
– Comparative law should also be free
 Many WorldLIIs?
– All AustLII’s portals are English dominated
– Droit Francophone (2003-7?) disappeared
– No Spanish or Portuguese ones exist
– AsianLII: multi-jurisdiction Chinese searches
Free access outside LIIs
 Most free access is outside FALM or WorldLII
– Significant free access law available from almost all
countries (see WorldLII Catalog): the ‘default position’
– 1000s of individual courts, legislatures etc
– Many countries have government LIIs
 Unquantified, uncoordinated, as yet
– Ex post facto searching and ranking of some data via
Google etc
– Of little value for comparative law research …
Alternative?:
‘Google lawyer’
Does Google make LII networks irrelevant?
1. Much (most?) free access legal data is not
accessible to Google etc spiders
–
Most LIIs and sources of identified case law block spiders
using Robot Exclusion Protocol
–
Privacy reasons primarily + LIIs protecting investment in
aggregation
2. Google’s spiders do not update legislation
frequently enough
3. Google does not (yet?) invest in difficult aggregation
from developing countries
But Google may become a formidable alternative
B. What is ‘free access’?
 Three statement of ‘free access’ principles
– AustLII’s ‘full free access’ (1995)
– FALM’s Declaration on Free Access to Law (2002)
– The Hague Conference draft principles (2008)
 ‘Full’ vs ‘mere’ free access
– “ ‘Free’ as in speech, not beer”
• A matter of rights, not largesse
– Freedom is ‘free from monopolies’
• Assertions of monopoly privileges are the main threat
AustLII’s 1995 approach:
‘full free access’


AustLII (1995) advocated 6 obligations of legal data sources
necessary for ‘full free access’:
1.
Provision in a completed form, including additional information
best provided at source (eg consolidation)
2.
Provision in an authoritative form, including citations
3.
Provision in the form best facilitating dissemination
4.
Provision to any 3rd-P republisher on a marginal-cost-basis
5.
Provision with no re-use restrictions or licence fees
6.
Preservation of a copy by the public authority
Main point: Source self-publication is only useful (more
choice), not essential. Right of republication is essential.
In retrospect, a good but incomplete start
FALM’s Declaration on Free
Access to Law (2002)
1. ‘Public legal information’ is ‘digital common
property’
2. It should be accessible free of charge
3. 3rd parties like LIIs have the right to republish
4. Government bodies that create or control it should
provide access for republication
5. Local initiatives have primacy, but LII networks are
encouraged
6. Reciprocal international benefits of free access
7. Mutual support objective of LIIs
In retrospect, not drafted very clearly
The Hague Conference draft
principles (2008)
 ‘Expert’ meeting on Global Co-operation on the Provision of
Online Legal Information (October 2008)
– Called by Permanent Bureau, Hague Conference on Private
International Law, 19-21 October 2008
– Over 30 free access to law providers, major law libraries, and
conflict of laws experts
– Issue: How can online free resources be made to be more useful in
resolving disputes with trans-border elements?
 Result was a largely consensual first draft of 17 principles that
States should adopt (a ‘log of claims’ on the State)
– Consensus that they should, by a Convention, agree to ensure that
their main legal materials are available for free access
– Many steps are then ‘encouraged’ to facilitate this
 February 2012: Formal conference involving State parties
3 Key elements in Hague
principles
1. Ensuring free access - only proposed obligation
– Ensuring that their ‘main’ legal materials are
‘available for free access in electronic form by
any persons’ (including overseas)
– Includes whatever legal materials the State has
from time-to-time
Comment: Previous statements had not stressed
this default obligation of the State
Key elements in Hague principles
2.
Republication - encouraged to allow and facilitate
others reproducing & re-using their legal materials
–
and to remove any impediments to such
publication.
–
but to respect local privacy laws in republication
of case law
Comment: unlike 2002 Declaration, not obligatory
Key elements in Hague principles
3. Integrity and authoritativeness
– States encouraged to make available
authoritative electronic versions of their legal
materials
– To do whatever they can to ensure those who rerepublish or re-use the authoritative legal
materials can do so with the highest integrity
possible and clear indications of their origins
and integrity.
– to remove obstacles to the recognition of these
materials in their courts
Comment: A vital new contribution
Revolutionary
implications of #3
1. ‘Court-issued authorised versions’
–
Courts to provide the most authoritative versions of their
cases to all republishers; no delegation as at present
2. Authorised online legislation
3. ‘Downstream authentication’
–
Courts, legislatures to provide the most authentic versions of
their outputs (eg digitally signed) to all republishers, so they
can distribute with authenticity intact,
4. Courts to regard as admissible these republished
versions, as both authoritative and authentic
Hague principles also
encourages State parties
1.
to preserve their legal materials
–
2.
3.
to provide historical legal materials
to adopt neutral methods of citation
–
4.
7.
8.
and to allow their reproduction
to develop multi-lingual access capacities
–
6.
medium& provider-neutral & internationally consistent;
to provide translations in other languages (if possible)
–
5.
in order to make them available as necessary
and to co-operate in doing so
to make any knowledge-based systems available for free
public access and re-use;
to use open standards for primary materials; and
to provide metadata with primary materials
From 1995 to 2012: What does
‘full free access’ mean now?
 ‘Right to republish’ by non-State parties still key
– 1995, 2002 & 2008 principles all stress this element
 State obligation to ensure there is free access
– In some countries, State provision may be necessary
– Right to republish supports but does not replace this
– Hague principles give this obligation first priority
 International reciprocity as a justification
– 2002 & 2008 principles both add this
– helps justify a norm of international conduct
 Elimination of monopolies in authoritativeness
– Only the Hague principles go some way toward this
Full free access:
‘What is to be done?’
1. LIIs to update 2002 Declaration
•
to incorporate 2008 Principles
2. Hague Conference Convention
•
based on 2008 Principles
3. Public authorities to enable full free
access in provision to republishers
•
particularly re authoritative versions
C. Legal impediments
to global free access?
1. Copyright: the Berne alternative
–
Almost all countries exempt legislation and case law from
© – as Berne allows
–
UK, Australia and other ‘Crown ©’ countries are exceptions
– but none use this as a bar
2. The database right (EU) - a straw man
–
Incorrectly raised as a second objection. But governments
are not ‘beneficiaries’ of the sui generis right (A 11); only
originality is protected
Law supports republication of government sources - this
‘passive cooperation’ allows it as of right
Technical impediments
to global free access?
 ‘No robots’ (Robot Exclusion Protocol)
– LIIs and search engines observe this protocol
– Rarely used by public sources, except for
identified case law (privacy reasons)
– Where used, active cooperation is needed
 The ‘hidden web’ (data behind forms etc)
– Many public sources use form-based interfaces
which often defeat web spiders/robots
– Persistence/investment can often overcome
Technical impediments to legal rights are rare
Misconceptions as
impediments
 Permission vs rights culture
– Republication does not require express authority, law usually allows
it as of right
 Mistaking sources for authority
– The original source need not be the only provider of authoritative
copies
 Discounting comparative law and common law
– The view that the only people interested in a country’s laws are
citizens of that country
 Discounting ordinary users
– The view that only lawyers and librarians want legal information
 Assuming commons are self-organising
– Assuming standards are not needed, search engines solve all
Impediment of
Money (lack of)
 Continuing suspicion that LIIs are unsustainable
 All NGO LIIs have different funding models
– Contributors, foreign aid grants, academic grants, contract
work, even ads
 Multi-stakeholder models
– A combination of models is more sustainable
– A single source of failure needs to be avoided
– Allows LII to maintain independence
 ‘Running on the smell of an oily rag’
– FALM is based on mutual support
But somehow they keep going, and growing
D. Liberty, democracy, rule of law –
where does free access to law fit?
1.
2.
3.
4.
5.
6.
7.
Assumed values: (i) the rule of law; (ii) liberties; and (iii)
democracy.
Access to legal information is necessary (but not sufficient) to
demonstrate/assess the extent to which those ends are or are
not achieved.
Assessment was by intermediaries (lawyers, MPs, press)
The Internet provides increasing equality of access to that
information, utilised by NGOs and individuals.
The information needed is increasingly global.
But commercially-priced legal information prevents individual
or NGO access.
Free Internet access to legal information make more
transparent, to more stakeholders, the extent to which all 3
values are satisfied.
Liberties
 Instrumental value
– The definition and protection of the three values is
increasingly based on international norms
– They are increasingly protected by a wide range of
NGOs
– They are subject to increasing scrutiny by an
informed public
 As an end in itself
– ‘Full free access’ (the right to republish free from
monopoly constraints) is itself a liberty
Rule of law
 3 ways access to legal information is relevant:
– Interactive: if we are ruled by laws, not office-holders,
anyone must be able to decide if the latter distorts the former
– Internal: if ‘ignorance of the law is no excuse’, the corollary
should be that it is easy to find the law, or excuses do exist
– External: if all institutions must obey the law, everyone
should be able to assess whether they do, and act on this
 If the rule of law belongs to citizens, not the State,
access to law in ways not controlled by the State is
clearly desirable, perhaps essential.
– No surprise in the UK, but it is elsewhere, even Europe.
Democracy
 Representative democracy
– Free access to law does not seem essential, only useful
 But consider ‘monitory democracy’
– Essence: ‘new mechanisms designed to introduce greater
public accountability in the making of decisions by
government’ (Keane, 2011)
– Government is constantly monitored, checked, and censured
by extra-parliamentary institutions, not only by elections,
upper houses & the press
– Monitory mechanisms include Ombudsmen; anti-Corruption
Commissions; Auditors; the ‘right to information’ (RTI or
FOI); privacy Commissioners
– Also NGO-created monitoring (eg ‘I Paid a Bribe’)
Monitory democracy requires
free access to law
 Monitory democracy requires that
citizens have effective and up-to-date
access to the laws that govern the
institutions of a democracy
 Otherwise, citizens and NGOs cannot
make monitory institutions work as they
are designed
E. Global potential/aspirations
(but not predictions)
What free acccess to law is possible/desirable by 2032?
Caution: 20 Internet years is unimaginable
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Independent national/regional LIIs (both NGO and PSI)
Multiple networks covering all countries’ laws
Access will be free, anonymous and non-manipulative
No monopolies impeding competition
Internet access available to all persons everywhere
All current and historical legal sources included
Most academic legal scholarship included
Rich user-generated content, with indicia of quality
All texts and citations interlinked comprehensively
Global access will alter patterns of authority.
References
 John Keane ‘The Life and Death of
Democracy’ Pocket Books, 2009