The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I attempted to give a bit of context to the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information.

In a few bullet points, here’s the gist:

• The premise of ‘Open Justice in the Digital Era’ is simple: enhancing freedom of expression and open justice through digital dissemination of courts data
• Inspired by other initiatives opening up governmental data (e.g mySociety’s WhatDoTheyKnow, TheyWorkForYou etc.)
• But: very little useable data exists at source. It’s public (sort of) but no-one seems to have taken a particularly systematic approach to opening it up
• Our project ran two events in 2012, with view to forming recommendations in due course
• Some of the ideas discussed (not recommendations at this stage) include:
  • The publication of ‘noticeboard’ court lists
  • The publication of court results (see William Perrin and discussion on Information Rights and Wrongs / HonestlyReal)
  • The publication of court documents such as all statements of case, judgments, orders, witness statements and written submissions
  • A reporting restriction notification system (see Scottish courts online system)
  • Wider availability of judgments and judgment summaries (opened under an Open Government Licence)
• Some of this material would be fairly straightforward to open up online, but some suggestions – particularly those around court lists and sentencing data – raise thorny issues for Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation
• Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines. A lot of the way material is published has its roots in journalistic / law reports convention, developed in a pre-internet world, when personal digital records would have been the stuff of dystopia novels
• At present, it’s all very inconsistent – there has been some opening up of courts information around the web (some efforts have encountered data protection objections – see Wigan World’s update, for example)
• The way courts material is handled is raising questions across Europe. In Spain, for example, the National Court (AN) has referred to the European Court of Justice with questions about a search engine result for a debt case, in relation to the Right to be Forgotten
• In 1955, Lord Denning described how a member of the public is entitled to report all that he has seen and heard in the public press. Now, the public doesn’t need the press to do it, but how should it be managed, when it has such a powerful effect on an individual’s digital identity (not only defendants, but victims and witnesses too**)?
• A couple of key questions about the current state of play: Is it logical to allow a private company to access and publish the data in closed/open databases, but not a not-for-profit organisation, or individuals? It is logical, or even possible, to publish courts data online but make it non-indexable by Google?
• In forming recommendations  we must consider these difficult issues around individuals’ privacy rights
• To discuss them is not to be hostile or obstructive to the right to freedom of expression: it is merely being responsible and ethical in our practice. We need to look at both sides of the privacy/freedom of expression coin, in order to assess the best ways of opening up information in the public interest and securing it when it’s legitimate to do so
• A coherent approach to the management of courts data is needed and the MoJ and judiciary should be giving this issue the attention it deserves

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

**As I was reminded in the questions following my talk. Other responses from the group raised even more uncertainties and questions. More views and problematic scenarios are welcome below…

But an incidental digital (and Google) record around court proceedings is being created nonetheless: when a blogger quotes or reproduces part of a judgment, in newspaper reports, on Twitter and so on.  Information that is available in open court – such as a defendant’s personal details – often (and legitimately) makes its way online.

Would it be better to have a complete record noting the outcome of the case, or leave it to this current state of play, where it’s a matter of chance whether a digital record gets created, often left incomplete? There are numerous complaints to the PCC where a newspaper has only partially reported a case, for example.

There needs to be proper consideration of what type of information should be part of a digital courts record, and how it should be released, as this recent example brought to my attention by Richard Taylor, shows.

He put in a freedom of information request for his local Magistrates’ court lists and was pleased that it resulted in its release in a “reasonably timely manner” (6 days).

But, of rather more concern, Taylor believes the list contained material that would be illegal to publish and so he has redacted the record, and removed it from WhatDoTheyKnow.com.

As a result of his request he has published “example court lists in full for selected upcoming sittings to be held at Cambridge Magistrates Courts, as well as further selected individual listed items in full“, which may be “the first time this has been done“.

In regards to the responsible – and legal – release of information, he says:

If the Courts and the Tribunals Service had a responsibility to remove such information prior to releasing the information is an interesting question. This is information anyone can obtain either by making the same freedom of information request I did, or by turning up to the court and asking for a copy of the court list on the day of the hearing, or indeed by sitting in the court and hearing the charges being read out…

To be continued. I’m hoping that other legal bloggers might add their views on the questions raised by Richard Taylor’s post…

More digital open justice reading:

• Open Justice in the Digital Era project: http://bit.ly/openjustice
• Emily Goodhand: ‘Who owns the copyright on barristers’ advocacy?’

Update here (11.02.13).

To mark Open Justice Week, Meeja Law has finally joined Facebook (here) where you will find links and resources about digital media law. On Twitter, you can follow @meejalaw and for automated updates on media law, @medialawUK. Or I’m @jtownend.

For this week’s media law listings (courts, Leveson Inquiry, Parliament and events) please see my latest round up on the Inforrm blog.

On Wednesday 29 February, lawyers, academics, journalists and others will be gathering at City University London to discuss the way forward for open justice in 2012. Speakers at the Centre for Law, Justice and Journalism’s ‘Justice Wide Open’ seminar include the journalist and activist Heather Brooke, PA Media Lawyer editor Mike Dodd, Hugh Tomlinson QC and Geoffrey Robertson QC.

The programme is embedded below and more details can be found here. It’s fully booked but you can join the waiting list. If you’d like to be kept informed when the publication is released later in the Spring, please drop me an email: judith.townend.1@city.ac.uk.

Happy Open Justice Week!

How will your partnership with the Guardian work?

We are having ongoing discussion with Guardian Law, the plan is for Guardian journalists, including those not used to covering courts, to go out and report on cases. The Guardian has also agreed to publish some of the best output coming from our writers and pushing the social media aspect south of the border.

Is it a country-wide initiative, or just Scotland based?

Our intention is to make it as wide as possible, at the moment we have started with Scotland as it is where we are based and have contacts, but in the next couple of weeks we plan to roll out the initiative and engage those in England, Wales and Northern Ireland too.

How do you see the project developing after ‘open justice week’?

At the moment we are focusing on making the week itself as successful as possible, we are open to suggestions as to how to take the project forward at the end of the week.

It was heartening to hear the Master of the Rolls, Lord Neuberger of Abbotsbury, discuss how best to achieve “public confidence in the justice system, transparency and engagement” last week.

His call for legal clarity and accessibility to UK courts should be welcomed and built upon by advocates of free expression.

‘Open Justice Unbound’, Lord Neuberger’s Judicial Studies Board Annual Lecture 2011, was – as the UK  Supreme Court Blog put it – “a vision for open justice in the 21^st century”.

For the time being, however, it’s a vision and there is still much that can be done to open up the UK’s courts online.

Lord Neuberger addressed pertinent digital points in his speech, which covered a range issues: the accessibility and format of judgments, super injunctions and accurate court reporting.

He welcomed “court tweeting”, as long as it does not interfere with the hearing, realistically adding: “I doubt however that we will see the development of tweeting from the bench”.

Lord Neuberger suggested that “a more active approach might usefully be taken by those of us who are concerned with the administration of justice to ensure that judgments are publicised and properly reported”.

“We should perhaps build on the Supreme Court’s practice of issuing short, easily accessible judgment summaries with judgments.”

Bloggers can particularly savour his comment that the judiciary “should foster the already developing community of active informed court reporting on the internet through blogs, and tweeting”.

“[W]e should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education,” he continued.

“The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”

Making legal information accessible to the public, as well as professional specialists, is at the heart of open justice.

Unfortunately a lot of courts information is locked behind pricey paywalls, only available to firms and institutions that can afford the annual subscription fees.

Many lawyers say that the Bailii website, which makes many judgments available, is an indispensible resource, but this should not stop the courts from continually innovating and releasing more data.

The journalist and author Heather Brooke has drawn attention to some of the existing paid for courts services, questioning the costs associated with accessing transcriptions and documents, in her latest book, The Silent State.

At this point the worst thing that could happen would be for an opaque private contractor to step in and handle more courts data and services, bringing with them unnecessary consultancy costs and strain on the public purse.

Instead the Ministry of Justice should work with legal practitioners, experienced web developers and transparency / Freedom of Information specialists, to work out the cheapest and most efficient way of opening up courts information online, making more information free and available to all British citizens.

More accessible guidance and data will help achieve Lord Neuberger’s aims for more accurate and informed reporting:

“…debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.”

Lucy Series, a legal researcher at the University of Exeter, raised valuable questions about open justice and the Court of Protection on her blog recently; and drew attention to this bizarre state of affairs, quoting a post on Binary Law:

“There is still a restriction on the number of English cases from divisions of the High Court which can be added to the BAILII database, arising from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to those handed down on paper) own the copyright in the transcribed version of the judgment. This prevents the judgment being added to the BAILII database without the consent of the shorthand writer. BAILII, being a free website, has no funds with which to acquire a licence to copy and display these transcripts.”

This is just one of the many quirky inconsistencies in UK law that needs to be examined. Let’s hope increasing discussion by bloggers and lawyers, along with Lord Neuberger’s valuable comments, prompt the Ministry of Justice to more seriously address the question of digital open justice, looking to other national courts for inspiration.

Lord Neuberger’s speech, below.