It is ironic that BAILII, which came into being to free the law, has been called out recently for restricting access to the law.
A Guardian editorial in September criticised the status quo in relation to the publication of court judgments and called for more open access. In so doing BAILII came across as the villain of the piece rather than the saviour of free law which most lawyers know it to be. Nevertheless, the editorial did raise valid questions about free and open access to case law which deserved answering. I asked Sir Henry Brooke, retiring chairman of the BAILII trustees, for his response to those questions and the resulting article is now published online on the Society for Computers and Law site.
Why does the MoJ release judgments through a contract with BAILII? Why does BAILII not allow search engines to index its judgments? Who owns copyright in judgments? Why does BAILII forbid reproduction on other sites? Sir Henry answers all these questions in some detail. But we are left with the question: Is free law enough – are we not entitled to open law? And if we do believe in open law, how do we get there?
UPDATES:
(1) See now the expanded post in the Internet Newsletter for Lawyers.
(2) See also Judith Townend and Lucy Series response to the Open Data consultation.
Hi Nick
That’s a really useful piece – thank you to Sir Henry Brooke for sharing so much detail about BAILLI’s origin and workings. It also clarified a number points. Contrary to an FoI response from the Ministry of Justice earlier this year, it appears other people can access the same data at source. In that FoI they had stated:
Q 3: Is the information supplied to BAILII also available to other publishers on the same basis?
A 3: No, the information is available free of charge via the BAILII website. We have scheduled this requirement to be re-tendered in 2012.
Q 4. 4. If so, what is the process whereby other publishers may obtain the data? If not, why not?
A 4. See response to question 3
http://www.whatdotheyknow.com/request/73838/response/189463/attach/html/3/FOI%2070820%20Mark%20Goodge%20response%20290611.doc.html
But Sir Henry Brooke says: “The circulation list for new judgments is not restricted to BAILII, and BAILII does not have any exclusive right to receive them.”
BAILII is a tremendous resource and I cannot imagine doing legal research without it. However, I do think some of the situations described in this piece are unsatisfactory, due to the MoJ’s / HMCTS administration of data rather than BAILII’s.
It seems to me very inadequate that copyright of all judgments should not be held by the Crown and available for free and widespread distribution. It should not require expensive litigation to establish this. The government should consider sharing the judgments under an Open Government Licence.
Secondly, I think the courts should take responsibility for errors. [Sir Henry reports: “I would not like to be a publisher who republishes one of these judgments without consent and without the benefit of such an indemnity.] In a digital age, it seems impracticable to expect to correct every occurrence of an error that has already been distributed and made publicly available. Courts should publish judgments on their own sites, properly redacted to protect confidentiality, and searchable, indexable and reproducible by third parties. I do think that greater value could be added to free legal research services with the development of new tools, such as automated alert services and powerful search tools.
I don’t think raising these concerns should detract from the excellent work that BAILII does (and certainly not cast it as a “villain”), but suggest that making judgments more useful and usable is the next step in opening up law online. And then we can tackle other parts of the legal system: case listings, claim forms…
Thanks Jude. I’ve now linked in the post to your response to the Open Data consultation.
We are a small charity and provide advice and representation in Employment Tribunals, this site is essential to us as we are a not profit making charity and therefore we are very limited in funds. The site is easy to use and assists everyone in the Centre. The site is invaluable to us.
A bit late to the party but I agree with everything that is said.
Baillii is an essential tool. I just wish it had more.
Every case should be free, or at least a synopsis/relevants parts. How can one know what the law is unless one has access to the law. This is essential where common law is concerned especially things like murder, joint enterprise etc.