Preface
It is serendipitous that the following piece is posted on the first anniversary of this blog. I hope that it has provided some interest, amusement and information for readers and I shall continue to post as and when I have the time and the material. I can foreshadow a three part series on hypertext linking which will be posted in the near future.
Introduction – Free Access to Law as an Aspect of Internet Freedom
The Rule of Law and its protection of human rights is essential to a functioning democracy. The discussion that follows addresses a critical aspect of the Rule of Law and that is the issue of the right of access to legal information. This right is a subset of the right to receive and impart information, but what is of significant importance is the nature of the information that is being imparted and received. It is information about the law – the rules that set the metes and bounds of behaviour in a society and that delineate and define the relationships between citizens and between citizens and the State.
In the print paradigm there were certain inhibitors to the communication of legal information, limited primarily by physical realities and the location of the books in which legal information was recorded. Most public libraries held a set of statutes for reference purposes. The situation regarding reported cases was different, and most sets of law reports were kept in one of the four (and latterly six) law libraries located in the four main centres and in Hamilton.
The digital paradigm has revolutionised the ability to communicate legal information. The physical and geographical inhibitors to access to legal information no longer matter. As long as one has access to a computer and an internet connection, if legal information is available on the Internet it will be accessible. But the issue is not as simple as that. The first consideration is that legal information must be available on the Internet. The second factor is that it should be freely available. One should not have to pay to access information essential to one’s rights and obligations in a functioning democracy. The third factor involves distribution or redistribution of legal information and the way that is accomplished. In this regard not only are there obligations on the part of the State but upon those who are responsible for distribution of and access to legal information.
But it is the Internet that is critical as the communications\distribution system – as an enabler of the right to impart and receive information and the subset right of access to legal information. It is for this reason that this study addresses the importance of the subset right that, in my view, is critical to an overall consideration of internet freedom, for without an understanding of the rules that govern society there can be no freedom, but rather a tyranny based on the use of law as an arcane mystery.
The study firstly examines the rationale for access to legal information, using a “law-based” approach. I then proceed to consider the opportunties provided by the Internet in the onset of the digital paradigm, and then consider the concept of access to law on-line and the development of the Free Access to Law Movement (FALM) and the principles that have developed over the years. Based on these principles a distillation of the resposibilities of the State and of redistributors are articulated, and using these principles a matrix is devoloped by which the performance of State and redistributor obligations may be measured and assessed as a part of a wider measure of the state of Internet freedom in a society.
The Rationale for Access to Legal Information.
Blackstone suggested that everyone should know the law because they were a party to its enactment in that the representatives of the community were Members of Parliament – a form of “knowledge by proxy”. He said:
“There needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the Emperor’s edicts because everyman in England is, in judgment of law, party to the making of an act of Parliament, being present thereat by his representative.”[1]
It is doubtful today that Blackstone’s view would have much currency. It certainly did not with Jeremy Bentham. He viewed the complexity and confusion of the common law as an anathema. He considered that it was the private preserve of “Judge & Co” – the Judges and lawyers who argued, decided and presumably understood the cases that constituted the intricate web of the common law. Bentham considered the common law as a grim place of “dark chaos”. As part of his detailed suggestions for reform of the law which should contribute to the fundamental premise of utilitarianism[2] Bentham advocated the codification of law and its enactment in statutes passed by an elected Parliament. This would replace the gradualism of common law principle. Codification would “mark out the line of the subject’s conduct by visible directions instead of turning (him) loose into the wilds of perpetual conjecture”. The heart of Bentham’s proposals was that the law should be freely available to all people so that the entire citizen could be aware of their rights and obligations. The law would no longer be the captive of the priestly castes of “Judge & Co”. It would be the domain of the community. But even before Bentham, Hobbes wrote:
“I think it were well that every man that can read, had a statute book; for certainly no knowledge of those laws, by which men’s lives and fortunes can be brought into danger, can be too much.”[3]
In Leviathan, Hobbes wrote:
“To rule by words requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient and clear promulgation, such as may take away the excuse of ignorance; which in the laws of men is but of one only kind, and that is, proclamation or promulgation by the voice of man.”[4]
Lawrence J in R v Wright said:
“The proceedings of Courts of Justice are daily published … Many of these proceedings contain no point of law, and are not published under the authority or the sanction of the Courts; but they are printed for the information of the public … though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings to the Courts of Justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. The same reasons also apply to the proceedings in Parliament: it is of advantage to the public, and even to the legislative bodies, that true accounts of their proceedings should be generally circulated.”[5]
Thomas Jefferson, in his report to the Commissioners for the University of Virginia in 1818 set out a number of principal purposes for education. Among these was that people should be educated so that they knew their rights, so that they could exercise their rights and defend them and so they could delegate their rights to others. Because rights are so much a part of law, and certainly were in Thomas Jefferson’s time as they are now, implicit within the Great Virginian’s statement is that people should understand and know the law and to do that they would have to have access to it.
Professor Lon L. Fuller, in The Morality of Law, set out eight different ways whereby one could fail to make law. He was of the view that a total failure in any one of the eight directions did not simply result in a bad legal system. It resulted in something that could not properly be called a legal system at all. His eight principles were as follows:
1. A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis;
2, A failure to publicise, or at least to make available to the effected party, the rules he is expected to observe;
3. The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective chain;
4. A failure to make rules understandable;
5. The enactment of contradictory rules; or
6. Rules that require conduct beyond the powers of the effected party;
7. Introducing such frequent changes in the rules that the subject cannot orient his action by them; and
8. A failure of congruence between the rules as announced and their actual administration.
It will be observed that at least three of these principles are based upon the premise that a person is entitled to know the law. Fuller goes on to say:
Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.[6]
At page 49, he said:
“Even if one man in a hundred takes the pains to inform himself concerning, say, the laws applicable to the practice of his calling, this is enough to justify the trouble taken to make the laws generally available. This citizen at least is entitled to know, and he cannot be identified in advance. Furthermore, in many activities men observe the law, not because they know it directly, but because they follow the pattern set by others whom they know to be better informed than themselves. In this way knowledge of the law by a few often influences indirectly the actions of many. The law should also be given adequate publication so that they may be subject to public criticism, including the criticism that they are the kind of law that ought not to be enacted unless their content can be effectively conveyed to those subject to them. It is also plain that if the laws are not made readily available, there is no check against a disregard of them by those charged with their application and enforcement. Finally, the great bulk of modern laws relate to specific forms of activity, such as carrying on particular professions or businesses; it is therefore quite immaterial that they are not known to the average citizen. The requirement that laws be published does not rest on any such absurdity as an expectation that the dutiful citizen will sit down and read them all.”[7]
Fuller’s last comment was echoed by Russell LJ in Incorporated Council of Law Reporting for England and Wales v Attorney-General & Anor where he said:
“There are some matters which require no proof. The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by Judicial exposition in the decision of cases brought before the Courts. It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole; and this is not the less so because at least in many instance the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment or otherwise interested in that field. … The same is to be said of the other source of our law, Judicial decisions and the reasons therefore, especially in the light of our system of precedent. It is in my view just as beneficial to the community that reliable reports of Judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published: and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant. To state that the publication also provides many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the Judiciary.”[8]
Fuller restricted the concept of promulgation. He was not of the view that the promulgation requirement included actual knowledge of the law’s content.
Obvious and urgent as this demand [for promulgation] seems, it must be recognized that it is subject to the marginal utility principle. It would in fact be foolish to try to educate every citizen into the full meaning of every law that might conceivably be applied to him, though Bentham was willing to go a long way in that direction. The need for this education will, of course, depend upon how far the requirements of law depart from generally shared views of right and wrong.[9]
Thus Fuller was of the view that promulgation, while necessary, did not demand that every citizen know the content of the law. Rather, the requirement for promulgation is met where it is publicised pursuant to a formalised standard, and where a person may access law that affects them. In addition, Fuller considered that the need for publication diminished where the matters addressed by the law were part of a community’s general knowledge of right and wrong.
John Finnis[10] expressed the view that promulgation was not fully achieved by the printing of official copies of enactments, decisions and precedents, but also required the existence of a professional class of lawyers whose business it is to know their way around the books and who are available to give advice to the populace without undue difficulty and expense, whilst John Rawls stated
“Unless citizens are able to know what the law is and are given a fair opportunity to take its directives into account, penal sanctions should not apply to them.”[11]
In the case of R v Christian & Ors[12] the issue of promulgation of and access to the law was addressed[13] In their decision the Court considered the principles developed by Fuller, Finnis and Rawls and concluded:
“It is our view that, despite the face value of some of these statements, in particular, those of Finnis and Rawls, none of the authors can be taken to have said that promulgation demands that the minutiae of the law be declared to every citizen. Rather, it is our view that these remarks indicate that in order to meet the requirements of the Rule of Law with regard to promulgation, governments must ensure adequate publication of the fact that law which applies to citizens exists, so that those citizens are able to know the law by accessing its content should they wish to. This interpretation of the philosophical position taken by the three theorists is the only one compatible with the fundamental legal principle that “ignorance of the law is no excuse” and cases that state that the law must be accessible and foreseeable.”[14]
Although there can be no doubt that an awareness of the minutiae of the law is not a precondition to criminal liability[15] the important issue is the matter of access to legal information in authentic form[16]. The subject should be aware of the law and have an opportunity to inform him or herself of its content. That the subject does not do so does not excuse liability for breach of the law.
The decision of the Privy Council in Lim Chin Aik v R[17] illustrates the importance of accessibility. That case was concerned with the ingredient of mens rea in delegated legislation specifically directed at the appellant which prohibited him from entering the State of Singapore. There was, however, no provision for publication of the order or for otherwise bringing it to the appellant’s attention, nor was there any evidence that he was notified of the order, or that any step had been taken to publish the order so as to bring it to his notice. The Privy Council noted[18] that the precept ignorance of the law is no excuse could not apply where there was no provision for publication “or any other provision designed to enable a man by appropriate inquiry to find out what ‘the law’ is”. The Board remarked[19] that one of the objects of the order was the expulsion of prohibited persons from Singapore, but that there was nothing that a man could do if, before the commission of the offence, there was no practical or sensible way by which he could ascertain whether he was a prohibited person or not.
Thus it is clear that one cannot have secret law. It is a contradictory phrase. Laws are designed to give guidance to the community. For that to take place the community must have access to the instruments that are intended to provide that guidance. Without promulgation couple with an opportunity for access top legal information, ignorantia legem neminen excusat would be unfair and unjust.
The Role of the Internet
The advent of digital and networking technologies, the rise in the use of computers and the availability of the internet represent a paradigm shift in the way that we communicate information. The internet coupled with the personal computer are as revolutionary a communications technology as was Gutenberg’s printing press or the telephone of Alexander Graeme Bell.
Since the mid-1990’s when the Internet became available for widespread public use, lawyers and those involved in the communication of legal information have been quick top utilize and exploit the communications advantages of the new technology.
The significance of the Internet is that it allows millions of people to access the same information from the one source at the same time. In a sense the book that is required is never off the shelf. It is my view that one of the alternative media available for the free access of the public to law is the Internet because of the low cost of access thereto.
The main advantages of the Internet as an information provision system can be summed up as follows. First, as long as the information is on a server it is permanent and may be an indefinite repository of information. Unlike printed material, digital content does not deteriorate. Secondly, information on the internet is available 24/7. Unlike any other medium, a website is available to everyone, whenever they desire it. Thirdly, iformation on the internet is virtually cost-free. Many ISPs allow their subscribers server space to host websites and access thereto is similarly virtually cost free. Unlike broadcast media, internet information is available on demand.
So far in this paper I have set out the rationale for why it is necessary that the law be promulgated and that citizens have access to it. It is my contention that the internet presents solutions for many of the problems that have been presented, particular in the area of access to law. The internet allows the first real opportunity to go beyond the theory of promulgation (knowing of the law) to the realisation of a citizen’s free access to the law (knowing the content of the law). Radical although the proposition may be in light of earlier jurisprudential thought, a new technology :
- allows the opportunity to be fulfilled
- presents the State with the means by which a society whose order is based upon the Rule of Law to make the rules available for minimal cost
- requires the State to do so.
The State may fulfil its obligation that the new technology allows by:
- Making the raw data of the law available – the decisions of the Courts and up-to-date legislative material in the form of:
- Statutory instruments
- Regulations
- Rules made by officials under delegated rule making powers
This has been accomplished by means of the Legislation On-Line site (www.legislation.govt.nz) The recently enacted Legislation Act 2012 provides for Parliamentary Counsel to make legislation available on-line and for free. In addition the Act states the the on-line version has the status of an official copy which will be recognised without question in Court
- Enabling free access to legal information in public libraries via the internet and by way of dedicated terminals
- In time further enabling free access to legal information via the internet by dedicated terminals in public buildings such as post offices, government offices to which the public has access and shopping centres or shopping malls.
At the moment some of the raw case-law data is available. The decisions of the Court of Appeal are available from the New Zealand Legal Information Institute (NZLII)[20] and the Australasian Legal Information Institute (AustLII)[21] The decisions of the Supreme Court are available from NZLII, Austlii and from the Supreme Court[22] and Courts of New Zealand[23] websites, a most encouraging development given the difficulties that have been encountered in making the decisions of the New Zealand Courts available on-line. Since 2006 a selection of High Court decisions, along with the decisions of a number of Tribunals have been made available by NZLII.
Access to Law On-Line
Free online access to legal information is approaching maturity in some parts of the world, after two decades of development, but elsewhere is still in its early stages of development. Nowhere has it been realised fully.
Online legal information retrieval had existed, through dial-up services, since the 1970s, but free public access was unknown. In 1984 there were no free public access services. One of many reasons was the cost of dial-up telecommunications. During the 1980s the situation got worse, as across the world governments tried to commercialise government information provision and were certainly not predisposed to offer free online services. The reductio ad absurdum was the decision of the New Zealand government to privatise its government printing service, including the only digital copy of its national legislation, which it then had to repurchase as part of the eventual creation of a free access service.
Over the 1990’s this position changed with the inception of the Cornell Legal Information Institute. Utilising (then) newly developed web browser technology the high levels of usage that their site soon achieved demonstrated that there was a public demand for access to legal information that went far beyond lawyers and law schools.
In 1995 the Australasian Legal Information Institute (AustLlI), based at two Australian law schools (UTS and UNSW) was the first to follow Cornell’s lead, and to borrow the ‘LlI’ name. By 1999 AustLlI had developed databases from all nine Australian jurisdictions covering key case law, legislation, treaties and some other content. AustLlI was the first LII to build a comprehensive national free access legal information system (Greenleaf, 2011), and it has continued to expand, exceeding 500 databases in 2012. From 2000 LexUM at the University of Montreal built the Canadian Legal Information Institute (CanLlI) in cooperation with the Canadian legal profession. It is a mark of its continued growth that in 2012 it added its one millionth full text decision. These LII’s have been joined by a number of other services which provide free access to legal information. The scope and extent of such access varies. One such site is the New Zealand Legal Information Institute (NZLii).
Is this enough? Is it sufficient that within that country there is some online access to the main current cases and legislation, for which users do not have to pay? Is the absence of end-user costs the sine qua non of ‘free access’? Greenleaf, Mowbray and Chung argue that it is not and proceed to consider the development of the principles that underpin the activities of the Free Access to Law Movement. (FALM). The FALM Declaration takes the view that its members republish legal information (for free access by users) as a matter of right, not because of some largesse of governments. This republication is the equivalent of ‘free speech’, even if from a user perspective the no-charge access to legal information could be regarded as equivalent to ‘free beer’. The authors argue that Free access to law is also similar to other aspects of free speech in that it usually has to be fought for, both against governments and against commercial interests. Free access to legal information requires that it be ‘free from monopolies’, just as free speech has to prevail over the monopolies of intellectual property in some situations before it is genuinely free. Assertions of monopoly privileges as part of the publication of legal information are a recurring threat as technologies and publishing methods change. In addition, ‘free access’ must be substantially free from surveillance.
Free Access to Law On-line has two major elements. One is the obligation of the State to ensure that there is free access to legal information, but not necessarily act as provider. The second is the criteria that define whether a provider is in fact providing free access to legal information. In the event that the State takes on the role of making the information available and acting as a provider, the two roles coalesce. An example of such coalescence may be seen in the Legislation On-Line Website.
State Obligations:
Having regard to the way in which the principles of free on-line access to legal information have developed over the years, the essential obkligations of the State in relation to free access to legal information may be stated as follows:
The obligations of the State, in relation to all primary legal materials (‘materials’), are to provide these materials to other parties to republish, without fee, in the most complete, authentic and authoritative form possible, and so that materials may be republished with their authority and integrity intact. To assist republication the State shall maintain an archive of historical materials, provide materials with neutral citations, utilising open standards, and including available metadata, and provide bulk downloading facilities (subject to local privacy laws and practices). The State should anonymise (redact) materials where that is necessary or customary for privacy protection. The State should remove impediments to use of the materials including copyright, database rights, and obstacles to admissibility. If necessary, the State should take the role of providing free access to these materials.
Provider Obligations:
An organisation provides free access to legal information if it provides to all users anonymous, free-of-charge and non-profit access to all online legal materials it provides from a jurisdiction. It should not impede any other republisher from obtaining access to the sources of the materials, and should adhere to relevant privacy laws.
An organisation provides free access to legal information if it provides to all users free-of-charge access to all its online legal materials from a jurisdiction, and does so without conflicts of interest which are adverse to maximising the quality and quantity of free access. Such conflicts of interest may arise where surveillance of access occurs, or where the method of provision is dictated by maximising support advertising or treating user information as a product. Provision of anonymous access is desirable. A non-profit provider or involvement of non-profit data sources or governance bodies in the provision of access reduces the likelihood of such conflicts. Providers should adhere to relevant privacy laws, and should not impede any other republisher from obtaining access to the sources of the materials.
Impediments such as copyright and prevention of republication apply with equal force to providers as they do the the State which makes primary legal information available. If there is to be any copyright protection it should be limited to a Creative Commons Licence with a requirement for attirubution only.
Greenleaf, Mowbray and Chung have distilled thirty free access principles from which may be developed a matrix by which free access to legal information may be measured and assessed.
| |
Principle |
Local Practice |
Compliance |
| 1 |
All primary legal materials should be free access |
|
|
| 2 |
Publicly funded secondary materials to be free access |
|
|
| |
State Obligations |
|
|
| 3 |
State obligation to ensure free access |
|
|
| 4 |
State removing impediments to/assisting republication |
|
|
| 5 |
State provision of material for republication |
|
|
| 6 |
State provision of material in printed form |
|
|
| 7 |
Abolition of copyright in statutes and cases |
|
|
| 8 |
No fees for provision to republishers |
|
|
| 9 |
State to redact/anonymise cases |
|
|
| 10 |
State to adopt medium neutral citation |
|
|
| 11 |
State to preserve historical materials |
|
|
| 12 |
State to provide authoritative online versions of laws |
|
|
| 13 |
State to ensure integhrity of online version of laws |
|
|
| 14 |
State to assist republication of authoritative versions |
|
|
| 15 |
State to assist republication of versions with integrity |
|
|
| 16 |
State to remove obstacles to admissibility of republications |
|
|
| 17 |
State to use open formats and provide metadata |
|
|
| 18 |
Cross jurisdictional reciprocal recognition |
|
|
| 19 |
State to provide free access to knowledge based systems |
|
|
| 20 |
State to provide translations and allow reproductions |
|
|
| 21 |
State to develop multi-lingual access |
|
|
| 22 |
Support for providers encouraged |
|
|
| |
Provider Obligations |
|
|
| 23 |
Access should be free of charge |
|
|
| 24 |
Access should be anonymous/surveillance free |
|
|
| 25 |
Access should be non-profit |
|
|
| 26 |
Respect for local privacy laws |
|
|
| 27 |
Republishers must not impede others from obtaining materials at source |
|
|
| 28 |
Local initiatives have primacy |
|
|
| 29 |
Networking of materials encouraged |
|
|
| 30 |
International or inter-jurisdictional co-operation |
|
|
[1] W Blackstone – The Rights of Persons 1 COM 185.
[2] Summed up in the phrase the greatest happiness for the greatest number
[3] T. Hobbes, The English Works of Thomas Hobbes of Malmesbury, A Dialogue Between a Philosopher and a student of the Common Laws of England (ed. Molesworth, London: J Bohn) 27 – 28
[4] T Hobbes, Leviathan (1651) (London: Dent & Sons, 1947) Ch 31 “Of the Kingdom of God by Nature”, para 3
[5] (1799) 8 TR 293,298; 101 ER 1396,1399
[6] L Fuller, The Morality of Law (New Haven: Yale University Press, 1967) p.39
[8] [1992] CH 73; [1971] 3 All ER 1029 at 1034
[10] Natural Law and Natural Rights Oxford University Press, New York, 1980
[11] A Theory of Justice Harvard University Press, Cambridge Mass 1999 at 212
[12] Pitcairn Islands Supreme Court; T37-46/2003; 24 May 2005 Full Court
[13] Ibid at paras 130 – 174
[15] Grant v Borg [1982] 2 All ER 257 (HL)
[16] R (on application of L and another) v Secretary of State for the Home Department [2003] 1 All ER 1062 at 1069
The IT Countrey Justice 