Open Data as a Human Right: the Case of Case-Law

Open data is sometimes considered first as a way to foster economic growth through the development of innovative services built on public data. However, beyond this economic perspective, important though it may be, access to public sector information should be seen first and foremost as an unprecedented opportunity to bridge the gap between the government and its citizens. By providing a better access to fundamental public services and promoting transparency and accountability, open data has the potential to guarantee a greater respect of fundamental human rights. In this respect, access to case-law (the law developed by judges through court decisions) could become a pioneering application of open data to improve our democratic societies.

According to the European Court of Human Rights (ECHR), publicity of court decisions, “by making the administration of justice transparent”, is a condition for a fair trial, the guarantee of which is one of the fundamental principles of any democratic society. There is no concrete publicity without a free access for any citizen to court records. This is why the ECHR considers that the ability for any citizen to obtain copies of judgments, without the need to show a legitimate interest, “protects litigants against the administration of justice in secret” and “is also one of the means whereby confidence in the courts can be maintained”. Furthermore, according to the European Parliament, “certain aspects of (in)accessibility of Court files cause serious legal problems, and may, arguably, even violate internationally recognised fundamental human rights, such as equality of arms.”

For those reasons, all over the world, diffusion of case law is a public service task. However, accessing court documents can prove a daunting task for untrained, private citizens, reporters, and NGOs. In some countries, corporations or charities have captured the market of access to judicial precedents as governments proved unable or unwilling to fulfill this key mission. For instance, an important part of English judge-made law is owned by a private charity, the Incorporated Council of Law Reporting. In others, decisions are sold by courts to private legal publishers. For example, the Administrative Office of the US Courts collects $145 million in fees to access court records, every year. As a result, citizens usually only have access to a small selection of court decisions.

However, modern communication technologies and digitization now make it possible to provide free online access to millions of public court documents.

Open legal data would guarantee the respect of fundamental rights and also increase legal certainty. Indeed not only do citizens need to know the law, in codes and statutes, they also need to understand the concrete application and interpretation of the law by courts. Therefore, a free access to court records can help litigants to prepare their trials, for instance while assessing the opportunity of a negotiation. In the 21st century, the Internet must be seen as a valuable opportunity to enhance the transparency of the judiciary and improve legal certainty.

Open data of jurisprudence shows that behind the mere economic gains, access and reuse of public sector information is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy, and is a matter of human rights in the information age. The judiciary should not be left behind the ongoing digital transformation of public policies. In this domain, some countries, such as the Netherlands, have already made great efforts to provide a free access to citizens to a large amount of court decisions, while respecting litigants’ privacy, but most countries still have a long way to go. Although access to legislation is already included in the Open Data Index by Open Knowledge, it only requires all national laws and statutes to be available online, and not judge-made law. Since case law is an important source of law, especially in countries of common law tradition, it should be included in the legislation dataset in future versions of the Open Data Index.

 

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