Professional Documents
Culture Documents
Introduction
Mr. dr. M van Opijnen is adviser legal infomatics at the Publications Office of the
Netherlands (UBR|KOOP). This article is partly based on his PhD thesis On and In
the Web. How the Accessibility of Case Law can be Improved (Op en in het web. Hoe de
toegankelijkheid van rechterlijke uitspraken kan worden verbeterd), University of
Amsterdam, Boom Juridische Uitgevers, 2014). The text was concluded in September
2016.
27
crucial importance. This will be discussed in Part 4, with a special focus on
the European Case Law Identifier. Some conclusions will be drawn in Part 5.
An Obligation to Publish
28
the special features of the proceedings in question and by reference
to the object and purpose of Article 6 para. 1.
2
To meet the requirements of art 6, not only the individual judgment has to be
assessed. In Axen v Germany the absence of a public hearing, as well as a
public pronouncement of the decision of a court of highest instance rejecting
an appeal on formal grounds, was no breach of art 6 since:
6
Ibid [26]. Because the European Case Law Identifier (ECLI), discussed below (in Part 4),
is intended as a neutral citation and suffices to find judgments online, case references
in this article deviate from the Australian Guide to Legal Citation.
Moser
v
Austria
(European
Court
of
Human
Rights,
ECLI:CE:ECHR:2006:0921JUD001264302, 21 September 2006) led to a comparable
conclusion.
Ibid [32].
29
While in Axen the requirements were met by a preceding court, in Lamanna v
Austria it was ruled that the full public pronouncement can also be done in
appeal, even if the final decision is rendered many years later.
8
11
12
Cf
Shmushkovych
v
Ukraine
(European
Court
of
ECLI:CE:ECHR:2013:1114JUD000327610, 14 November 2013).
10
11
12
Raza
v
Bulgaria
(European
Court
of
Human
Rights,
ECLI:CE:ECHR:2010:0211JUD003146508, 11 February 2010) [53]; Fazliyski v Bulgaria
(European Court of Human Rights, ECLI:CE:ECHR:2013:0416JUD004090805, 16 April
2013) [69]; Nikolova v Bulgaria (European Court of Human Rights,
ECLI:CE:ECHR:2013:1217JUD002068804, 17 December 2013) [85].
Human
Rights,
30
An obligation to publish (all) rendered judgments on a website cannot be
read in art 6 itself, nor in the case law of the Court. Since such an obligation
would entail major legal, technical, societal and financial consequences it
would arguably require an explicit decision by the state parties to the
European convention. On the other hand, the question whether publication
of a judgment on an internet site is to be regarded as public pronouncement
is not answered explicitly yet, but in Nikolova v Bulgaria, the Court seems to
hold that view by listing this possibility on an equal level as other recognised
ways of public pronouncement:
13
[T]he judgments given were not delivered in public and were not
available at the registry of the court or on its Internet site, nor could
the first applicant herself obtain a copy.
14
Although implicitly, the technological ease with which court decisions can be
published on the internet also played a role in Ramsahai v the Netherlands.
The case was about a citizen who died by a police bullet. After investigations
the public prosecutor decided to drop charges against the police officer
concerned. Having an established interest the family of Ramsahai contested
this decision in a special complaints procedure before the Court of Appeal.
The order of this Court (confirming the Prosecutors decision) was not
pronounced in public. The European Court of Human Rights considered art
6 of the Convention not to be applicable, because it is confined to civil and
16
13
14
Ibid [84].
15
16
31
criminal proceedings and does not cover such administrative procedures.
Still though, with a reference to Finucane v United Kingdom, it ruled:
17
17
18
Ramsahai
v
the
Netherlands
(European
Court
of
Human
ECLI:CE:ECHR:2005:1110JUD005239199, 10 November 2005) [422].
19
Ramsahai
v
the
Netherlands
(European
Court
of
Human
Rights,
ECLI:CE:ECHR:2007:0515JUD005239199, 15 May 2007) [354] (emphasis added).
20
Jointly partly dissenting opinion of Joien and Popovi to the Grand Chamber
decision, 9.
Rights,
32
2.2 Dissemination of European Case Law
Apart from the publication of its case law by the European Court of Human
Rights itself, the 47 member states of the Council of Europe themselves have
to publish the most relevant case law of the Court, alongside the text of the
European Convention; a 2002 recommendation of the Committee of Ministers
asks the member states to:
[E]nsure that judgments and decisions which constitute relevant
case-law developments, or which require special implementation
measures on their part as respondent states, are rapidly and widely
published ... in their entirety or at least in the form of substantial
summaries or excerpts in the language(s) of the country in,
where appropriate, the Internet sites.
22
21
22
23
For an overview see Presentation of the European Court Reports (2016) Court of Justice
of the European Union <http://curia.europa.eu/jcms/jcms/P_106308/en/>.
33
though are published on the website of the CJEU itself, as well as on the
EUR-Lex website.
24
25
Especially of interest in the EU is the legal framework regarding the crossborder accessibility of EU-related case law. Since EU law is (partially)
applicable within the member states, the national judge has to implement
and interpret it. Already in 1982 the CJEU ruled in Srl CILFIT and Lanificio di
Gavardo SpA v Ministry of Health that national judges, when deciding cases
in which specific questions of European law are raised, have an obligation to
consult not only national and CJEU jurisprudence, but also decisions of other
member states courts. This obligation to consult the case law of European
colleagues implies a joint obligation to make national case law accessible, as
was reinforced by a resolution of the European Parliament in 2008. There
have been various initiatives by European judiciary networks and EU
funded programmes to live up to this obligation.
26
27
28
24
See Info Curia Case-law of the Court of Justice: Search Form (2016) Court of Justice of
the European Union <http://curia.europa.eu/juris/recherche.jsf?language=en>.
25
26
27
European Parliament, The Role of the National Judge in the European Judicial System
(2007/2027(INI), CELEX:52008IP0352, 9 July 2008). In deviation of the Australian
Guide to Legal Citation most EU materials are (additionally) cited with their CELEX
number, since this is currently the most reliable method to find documents on the
EUR-Lex website (above n 21).
28
For an overview: M van Opijnen, Finding Case Law on a European Scale Current
Practice and Future Work, in E Francesconi, G Sartor and D Tiscornia (eds), Legal
Knowledge and Information Systems JURIX 2008: The Twenty-First Annual Conference
(IOS Press, 2008) 43. The project EU-cases can be added, EUCases (2016) EUCases
<http://www.eucases.eu>.
29
34
database. With the Publications Office taking over responsibility from the
Commission, this JURE-database is now integrated in EUR-Lex.
30
32
2.3 Legal Frameworks at the National Level and the Problem of Selection
Two objectives are served by publishing court decisions on the internet. The
first is to serve the rule of law, encompassing for example, the scrutability of
the judiciary and the equitable application of the law. The second objective is
to inform the publiclawyers and laymen alikeabout the continuous
development of the law.
Theoretically the first goal requires all case law to be publishedwhich
might converge with using the internet as a method of public
pronouncement the second goal is best served by publication of a limited
number of cases, because, in the wording of the still only international legal
instrument on this topic, The Selection, Processing, Presentation, and Archiving
of Court Decisions in Legal Information Retrieval Systems: [S]election should
ensure ... that the accumulation of useless information is avoided.
33
34
35
30
31
32
Although
the
(limited)
database
is
online:
Application of Competition Rules by National Courts Article 15(2) (2016) European
Commission:
Competition
<http://ec.europa.eu/competition/elojade/antitrust/nationalcourts>.
33
34
35
35
is between negative and positive selection criteria. Negative criteria are
at leastto be applied on the highest courts: all of their decisions should be
published, except:
[I]f the grounds on which they are based are stated according to a
standard formula of formula clause [or] if they concern questions
of evidence which are in agreement with existing case-law.
36
Most European countries nowadays apply the negative criterion for their
highest courts. In some countries this is based on explicit legislation. For
example, in Austria both negative and positive criteria have a legal basis: the
Minister of Justice is obliged to develop an internet database in which all
decisions of the Supreme Court have to be published, unless they are
declared ill-founded without extensive motivation. The database should
also contain the for the Supreme Court most important decisions of other
courts, which have to be published: In as far as they are of general interest,
exceeding the individual case.
38
39
40
Also in France all highest courts decisions have to be published, while from
the lower courts those decisions should be published: [w]hich are to be
selected on criteria suitable for the jurisdiction in question. In Spain those
41
36
37
38
Bundesgesetz ber den Obersten Gerichtshof 1968 [Supreme Court of Justice Act]
(Austria) 28 August 1968, ss 15, 15a.
39
Bundesgesetz ber den Obersten Gerichtshof 1968 [Supreme Court of Justice Act]
(Austria) 28 August 1968, ss 141, 152.
40
41
Dcret n 2002-1064 du 7 aot 2002 relatif au service public de la diffusion du droit par
l'internet [Decree 2002-1064 on the Public Service of Dissemination of Law via the
Internet] (France) 7 August 2002.
36
decisions from lower courts have to be published: [o]f which relevance and
academic interest justify publication.
42
43
The absence of more detailed guidelines can easily be used as an excuse for a
very limited selection.
In the Netherlands, a generous selection of decisions from district and
appellate courts has been a policy goal of the judiciary portal website from
its start in 1999. It now contains a balanced mix: 169,000 decisions from the
four highest courts, 72,000 courts of appeal judgments and 139,000 cases
from district courts. In the Netherlands there is no legislation on the internet
publication of judicial decisions, but the selection criteriafully redrafted in
2012are quite elaborated. Apart from legal importance, also societal
impact is an important selection criterion and by grouping negative, positive,
objective and subjective criteria as well as by putting emphasis on
45
46
42
Cuya trascendencia e inters doctrinal justifique su difusin [Of which relevance and
academic interest justify publication]. See Acuerdo de 7 de mayo de 1997, del Pleno del
Consejo General del Poder Judicial, por el que se aprueba el Reglamento 1/1997, del Centro de
Documentacin Judicial, art 8.
43
44
45
46
37
operational wordings, these criteria give clear guidance to judges and offer
transparency to the public. After some introductory provisions art 3 states
the negative selection criterion for all (four) highest courts and specialised
chambers of three other courts. For district and appellate courts arts 46
define positive criteria, starting in art 4 with the most objective ones. Some of
those are of a procedural nature for example, decisions starting or
following a preliminary reference proceeding at the CJEU or decisions within
the framework of the 2007 Lugano Convention other objective criteria are of
a more substantive nature: for example, criminal cases in which the accused
is sentenced to at least four years imprisonment (regardless of the crime) or
cases in which someone is prosecuted for murder, manslaughter or a related
crime (regardless of the decision). Article 5 contains positive criteria of a
more subjective nature: cases that have attracted media attention, decisions
that are published or reviewed in legal periodicals or are of particular
relevance for special interest groups, will affect the interests of natural or
legal persons not involved in the case itself, or can be expected to be
influential on legal doctrine. Finally, art 6 determines that decisions not
specifically meeting one of the positive criteria listed should nevertheless be
published as much as possible, as long as they do not merely consist of
standard formula.
47
49
50
51
47
48
49
[Court Case
Management Act] (Former Yugoslav Republic of Macedonia).
50
51
Lietuvos Respublikos teism statymo [The Republic of Lithuania Court Act] (Lithuania).
38
exception of a few categories. In Estonia the Public Information Act lays
down the basic principle that all decisions have to be published, but the,
hierarchically higher, procedural laws allow exceptions; family cases are
hardly published, but most other civil as well as criminal cases are,
although in sensitive cases it is allowed to confine publication to the
operative part. Also in Russia the full texts of court decisions are to be
published on the internet, with an exception for cases relating to state
security and personal and family cases.
52
53
54
55
56
Publishing allor mostdecisions on the internet might be counterproductive though. It is illusory to propound that the judiciary can be
effectively monitored by just putting hundreds of thousands of anonymised,
untagged and unstructured decisions online. In addition, publishing these
enormous volumes means that the second function of case law publication is
also endangered: the law-shaping voice of the judge in potentially landmark
decisions is muted by a tsunami of legally irrelevant cases.
As a consequence, if it is considered essential for reasons of judicial
transparency to stick to the negative criteria also for the lower courts, some
kind of a tagging mechanism is absolutely required to meet also the second
objective of case law publication.
The European Court of Human Rights has developed a workable solution.
As prescribed by the Committee of Ministers, the Court publishes all of its
decisions and judgments, but uses a classification scheme with four
importance levels. The highest category contains all decisions which have
been published (since 1998) in the Case Reports, the other three are labelled
(from low to high importance): 3, 2, 1. To give an indication of the
57
52
With more detailed provisions in a decision of the Council for the Judiciary
(Nacionalin teism administracija). See Teism tarybos 2005 m. rugsjo 9 d. nutarimu
Nr. 13P-378 Change to: /Nutarimas dl teism sprendim, nuosprendi,
nutarim ir nutari skelbimo internete tvarkos patvirtinimo/ [Ruling on publication
of judgments, sentences and orders on the Internet] (Lithuania)
53
54
55
56
Federal Law No. 262-FZ of 22 December 2008 on the Provision of Access to Information on
the Activities of Courts in the Russian Federation (Russia) art 15.
57
39
distribution of decisions over these categories, from the highest to the lowest
level: 3%, 4%, 11%, 82%.
58
60
Data protection
At the turn of the century there was debate on the balance between the need
for transparency and scrutinyas expressed in art 6 of the European
Conventionand the protection of privacy as laid down in art 8 of
Convention. Protagonists of full and unselected publication held that personal
data in judgments [c]an be necessary for the exercise of public scrutiny,
and therefore should not be rendered anonymous. One argument was drawn
from the fact that the European Court of Human Rights itself did not
61
58
As of September 2016. Until June 2012 there were three levels (high, medium and low
importance) with then a distribution of 7%, 11% and 82%. As can be learned from
comparing the two distributions the Case Reports documents have been in category 1
before.
59
60
M van Opijnen, A Model for Automated Rating of Case Law (Paper presented at
Fourteenth International Conference on Articifial Intelligence and Law, Rome, 13
June 2013) 140.
61
40
anonymise its judgments; at that time rule 47 para 3 of the Rules of Court
read:
Applicants who do not wish their identity to be disclosed to the
public shall so indicate and shall submit a statement of the reasons
justifying such a departure from the normal rule of public access to
information in proceedings before the Court. The President of the
Chamber may authorise anonymity in exceptional and duly justified
cases.
62
64
65
66
Also the European Court of Human Rights itself followed the evolving state
practice: in 2008 it changed the cited provision of the Rules of Court, of
62
Registry of the European Court of Human Rights, Rules of Court (July 2006)
<http://www.echr.coe.int/Documents/Library_2006_RoC_ENG.pdf>.
63
The very detailed anonymization rules in the Netherlands are an exception. See de
Rechtspraak,
Anonimiseringsrichtlijnen
<http://rechtspraak.nl/Uitspraken-enRegisters/Uitspraken/Anonimiseringsrichtlijnen/Pages/default.aspx>.
64
In Belgium, Wet tot oprichting van het informatiesysteem Phenix [Act on the
Development of the Phenix Information System 2005] (Belgium), art 9 imposes the
drafting of a Royal Decree regarding both anonymisation guidelines and a
complaints procedure, but it has not been drafted yet.
65
Federal Law No. 262-FZ of 22 December 2008 on the Provision of Access to Information on
the Activities of Courts in the Russian Federation (Russia), art 15 para 3.
66
41
which the last sentence now reads: The President of the Chamber may
authorise anonymity or grant it of his or her own motion.
67
Also the CJEU changed its rules of procedure. With regard to the
preliminary rulings proceedings art 104 of the former Rules of Procedure
stated explicitly that the original (hence non-anonymised) version of the
national judgment had to be communicated to the various stakeholders. In
the new Rules of Procedure, in force since 1 January 2013, a specific art (95),
titled Anonymity has been introduced. It reads:
68
69
1.
Where anonymity has been granted by the referring court or
tribunal, the Court shall respect that anonymity in the proceedings
pending before it.
2.
At the request of the referring court or tribunal, at the duly
reasoned request of a party to the main proceedings or of its own
motion, the Court may also, if it considers it necessary, render
anonymous one or more persons or entities concerned by the case.
In general, one may conclude that with a growing awareness of the risks of
data mining and the enactment of the EU General Data Protection
Regulation, the debate on easing anonymisation rules has silenced.
70
Open Data
At the global level the re-usability of public data has been recognised as a
stimulus for economic growth and governmental transparency. Soft law
instruments are gradually shaping a legal framework, like the G8 Open Data
67
Registry of the European Court of Human Rights, Rules of Court (14 November 2016)
<http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf>.
68
Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991
[1991] OJ L 176/7, CELEX:31991Q0704(02).
69
70
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on the
free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1,
CELEX:32016R0679.
42
Charter and, focussed on legal data, the Guiding principles of the Hague
Conference on Private International Law.
71
72
74
75
The mere fact that personal data are publicly available for a specific
purpose does not mean that such personal data are open for re-use
for any other purpose.
76
One could argue very well that if court decisions are not rendered
anonymous before publishing them on the web (like in many common law
countries) and additional measures have been taken to protect the interests
77
71
Cabinet Office, UK Government, G8 Open Data Charter and Technical Annex (18 June
2013) <http://www.gov.uk/government/publications/open-data-charter/g8-opendata-charter-and-technical-annex>.
72
73
74
75
76
Article 29 Data Protection Working Party, Open Data and Public Sector Iinformation
('PSI')
Reuse,
Opinion
06/2013
(5
June
2013)
<http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2013/wp207_en.pdf>.
77
See, eg, Apata, R v Secretary of State for the Home Department [2016] EWVA Civ 802.
43
of named litigantsfor example, by the use of the Robots Exclusion
Protocol purpose limitation might be a valid reason for not making these
documents available for reuse, notwithstanding the possible breach of data
protection rules by maintaining such databases in the first place. In any case,
purpose limitation should and cannot be used as an argument against
making available for reuse any public case law database that is already fully
anonymised.
78
The second important amendment of the PSI Directive regards the technical
usability of the data. The original text of art 5 para 1 read:
Public sector bodies shall make their documents available in any preexisting format or language, through electronic means where
possible and appropriate.
After the amendment it reads:
Public sector bodies shall make their documents available in any preexisting format or language, and, where possible and appropriate, in
open and machine-readable format together with their metadata.
Both the format and the metadata should, in so far as possible,
comply with formal open standards.
More specific guidelines are published by the European Commission,
recommending, inter alia, the highest possible level of granularity,
publication at a stable location, publishing in formats like XML, JSON and
RDF, using rich metadata (for example, Dublin Core), controlled
vocabularies and APIs as well as proper documentation. Apart from these
general instructions, equally applicable to all types of public data, guidance
for improving reusability of case law documents can be found in the Council
Conclusions on the European Case Law Identifier, which will be discussed in
Part 5 below.
79
There are substantial differences across Europe regarding the extent to which
case law repositories are actually available for reuse. In the Netherlands for
example, all published decisions have been available for unlicensed reuse in
XML-format, via FTP since 2004 and via a RESTful web service since 2013,
but in many other countries re-users are confined to screen scraping and in
78
79
44
some other even legal restrictions apply being at odds with the PSI
Directive.
An interesting court case on this topic can be found in Germany where
LexXpress GmbH, a legal publisher, wanted to have equal access to the XML
formatted judgments of the Constitutional Court (Bundesverfassungsgericht),
as well as to the accompanying metadata, which were till then exclusively
sent to Juris GmbH, a company in which the state holds a majority stake.
These metadatalike head notes, summaries and referencesare written by
the staff of the Constitutional Court. While LexXpress held that, based on the
(by then unamended) PSI directive and the way it was transposed into
national German law, it was equally entitled to the information as Juris
GmbH; the defendant (the State) held that the metadata were copyright
protected. In its decision of 3 November 2011 the Administrative court in
Karlsruhe ruled for the defendant, but that decision was radically
overthrown by the Appellate Administrative Court (Verwaltungsgerichtshof,
VGH) Baden-Wrttemberg. The VGH ruled that not only court decisions
themselves are free from copyright, but also the metadata concerned, since
they are produced by court staff. Hence, the exception for copyrighted
material, made in the national legislation implementing the PSI directive was
not applicable. Also, the argument of the Constitutional Court that the State
had a specific interest in an exclusive contract with Juris GmbH was waved
aside by the VGH. The final decision had to come from the Federal High
Administrative Court (Bundesverwaltungsgericht, BVerwG). Because the
BVerwG also has an exclusive contract with Juris GmbH, a motion to recuse
was filed against all judges of the BVerwG, which was dismissed (an
unappealable decision of the BVerwG itself). Disappointingly from a legal
perspective a decision on the merits will not be rendered, since the case has
been withdrawn in 2015 after reaching a friendly settlement. The launch of
the website Court decisions on the internet (Rechtsprechung im Internet) on
which the decisions of the Constitutional Court and the other Supreme
80
81
82
83
80
81
82
83
45
Courts can be searched and downloaded seems to have played a major role
in reaching this settlement.
84
One of the reasons for the only moderate success of some of the initiatives
for improving access to EU related national case law was the lack of proper
identifiers and common metadata. To provide for standardisation the EU
Council of Ministers in December 2010 established the Council conclusions
on ECLI. The ECLI framework consists of five core components.
85
86
87
The first component is the identifier itself, which can be assigned to every
court decision rendered by a European or Member States court. The fixed
format of five elementsECLI:{country code}:{court code}:{year of
decision}:{unique code}makes this identifier easily recognised and read by
lawyers and computers alike, while at the same leaving room for flexibility
in national implementation.
Currently ECLI has been introduced by and made available in public case
law repositories ofthe CJEU, the European Court of Human Rights, the
Boards of Appeal of the European Patent Office (EPO), all courts in the
Netherlands, Spain and Austria, and a growing number of courts in
Germany, France, Slovenia, the Czech Republic, Slovakia, Finland and
Greece. In Romania, Italy, Cyprus, Belgium, Latvia, Estonia, Bulgaria,
Denmark and Croatia the implementation of ECLI is work in progress.
88
89
84
T Podolski, Juris: Lexxpress gegen BVerfG: Sieg ber mchtige Gegner, Legal Tribune
(online), 10 February 2015 <http://www.lto.de/persistent/a_id/16771/>.
85
86
Council of the European Union, Council Conclusions Inviting the Introduction of the
European Case Law Identifier (ECLI) and a Minimum Set of Uniform Metadata for Case Law
[2011] OJ C 127/1, CELEX:52011XG0429(01).
87
See also M van Opijnen, European Case Law Identifier: indispensable asset for legal
information retrieval in M A Biasiotti and S Faro (eds), From Information to Knowledge.
Online Access to Legal Information: Methodologies, Trends and Perspectives (IOS Press,
2011) 91.
88
The ECLI of the CJEU is available at the Courts website as well as on EUR-Lex.
89
46
The second component of the ECLI framework is a unified set of mandatory
and optional metadata, based on the Dublin Core metadata standard.
Thirdly, Member State implementation should be guided by a national ECLI
co-ordinator, which is, inter alia, responsible for documenting the national
technical specifications on the ECLI pages of the European e-justice portal,
the fourth component of the ECLI framework.
90
Finally, the Councils conclusions assign the Commission with the task to
develop the ECLI Search Engine on the European e-justice portal (ESEEEJP), giving access to possibly all European and national court decisions
having an ECLI. One of the advantages would be that one can discover easily
whether for example, summaries in other languages are available for a
specific judgment. The ESE-EEJP went live on 4 May 2016, and contains
nearly four million decisions from the CJEU, the EPO, Spain, the
Netherlands, Czech Republic, Slovenia, Finland, Germany, France as well as
from the JuriFast database of the Association of Councils of State and
Supreme Administrative Jurisdictions of the European Union.
91
92
93
90
91
European
Justice,
ECLI
Search
Engine
(4
May
justice.europa.eu/content_ecli_search_engine-430-en.do>.
92
93
J C van Haersolte, A Wheel Within a Wheel: the Association of the Councils of State
and Supreme Administrative Jurisdictions of the European Union (2010) 3 Review of
European Administrative Law 1, 131.
94
Building on ECLI, Building on ECLI <http://www.bo-ecli.eu>, the project is cofunded by the Justice Programme of the European Union (20142020).
2016)
<https://e-
47
the fifth objective is to promote the use of ECLI for interoperability in (legal)
IT applications and for case law citations in all legal and academic writings.
Conclusions
The amended PSI Directive is very much welcomed by re-users of case law
databases. Many improvements can be expected in the coming years,
although two issues require attention. First, also with respect to reuse data
protection should be the guiding principle, especially for those countries not
yet having a very strict regime regarding anonymisation of court decisions.
To have the best of both worlds, more drastic anonymisation should be
preferred over limitations of reuse.
A second issue regards the problem of information overload. Data scientists
and academics with a hard-core vision on judicial transparency make us
believe there is no problem with just making everything available. By doing
95
See, eg, P A Winn, Online Court Records: Balancing Judicial Accountability and
Privacy in an Age of Electronic Information (2004) 99 Washington Law Review 307; I
Currie, Problems of Privacy in Online Court Materials in G Peruginelli and M
Ragona (eds), Law via the Internet. Free Access, Quality of Information, Effectiveness of
Rights, Florence, 30/31-10-2008 (European Press Academic Publishing, 2008) 73.
48
soas experienced in many countries having such rigorous policiesthe
interests of average userslegal professionals looking for relevant cases and
interested citizens alikeare disregarded completely. Without any policies
assuring that the qualitative accessibility of the information holds pace with
the quantitative growth of the repositories the net balance will be negative.