by Gavin Sheridan, co-founder and CEO of Vizlegal
At the recent launch of the Barclays / Law Society Eagle Lab law tech incubator in London, Lord Keen of Elie (Richard Keen QC) said, “There is a lawtech revolution happening all over the world and I want to make sure the UK not only keeps pace with it but leads it.”
Simon Davis, the deputy vice president of the Law Society also weighed in saying that “lawyers are being presented with a growing list of possibilities to augment their careers and their businesses with technology”.
Clearly as a law tech startup ourselves, we wholeheartedly agree. But there are also fundamental barriers to entry in some aspects of the legal industry that may have gone unnoticed.
A prime example of this: access to information.
As a legal intelligence company Vizlegal’s primary focus is on accessing public information such as court judgments, regulatory decisions or filings data, in many jurisdictions. We do this to help practitioners know what’s happening right now, or to build products and tools in the area of analytics so practitioners can gain some insight into trends over time. We want to help practitioners to save time and energy on repeated tasks, and let software do more of the heavy lifting.
But unfortunately for us, and indeed for the public, enormous amounts of what arguably is “public” information is published in poorly formatted documents that are difficult or impossible to search or parse properly.
Or worse – it’s simply not available at all.
Clearly, we share Lord Keen’s view that the UK could lead the world in the space of law technology. But here’s an exercise to try: find a court judgment published in an open, accessible re-usable format in England & Wales. You won’t find it. Indeed, it’s hard to find it in Scotland or Northern Ireland either.
Or try finding court diaries, or accessing court filing systems. They either don’t exist, are inaccessible, open to some but not others, or are ephemeral in nature. Or even try getting clarity on who actually owns copyright on a court judgment. Everywhere we’ve looked there are very deep rabbit holes – with no clear answers to be found.
These problems lead to serious consequences: a lack of ability for companies – not just ours, but any company – to build products and services on top of that rich public data. And of course the public are also largely left in the dark about the case law that affects their lives.
Recently the co-designer of ICLR.co.uk, Daniel Hoadley wrote some excellent provocative blog posts on the subject of open access to case law – particularly in the case of England & Wales. He laid out four fundamental problems with the system that he believes need to be addressed.
Firstly, he wrote, the supply chain that takes a judgment (whether handed down or given extempore) to the wider public is “messy and poorly understood by the Ministry of Justice”. Secondly, the intellectual property rights over the judgments themselves is “needlessly uncertain”. Thirdly, he argued there is no solid model for translating the way the common law works to the sort of open case law system we need and fourthly, he noted, “BAILII, in several key ways, itself acts like a publisher of proprietary content”.
In a follow-up post he pointed out that BAILII is only publishing a small portion of the case law that is actually being produced. Only 19% of Court of Appeal (Criminal Division) judgments in 2017 are publicly available for free via BAILII, he noted. This is not the fault of BAILII, but is down to how the pipeline between judgments being handed down and how they are transcribed and distributed is largely broken – at a structural level.
If you’re a member of the public trying to find or read a judgment or a business trying to build products on top of public information this is, as you might say in tech, sub-optimal.
There is a fundamental structural problem with accessing UK case law (in particular English & Welsh case law). Either much of it is not available to ordinary members of the public or to business, or much of it is not re-usable, or re-usable in suitable formats (something the EU’s Re-use of Public Sector Information Directive encourages).
At Vizlegal we tend to look at this problem from a first principles perspective.
Access to justice and access to information are, we believe, fundamental rights in any democracy. As a company we’ve looked at most jurisdictions in the world to see how much, or how little statutes or case law are available freely – either in proprietary formats like Microsoft Word or Adobe PDF, or in open accessible formats like XML or via APIs.
For example, the EU’s “Eur-Lex” legal data is probably the best in class. The statutes and case law that emanate from the EU’s institutions is made available freely, without licence, in open, accessible, structured data formats. This means companies like ours can build products and services on top of that data.
When you start looking at other jurisdictions however, things tend to get worse.
Globally, there are many, many problems with open access to law. For statutes in common law Page 7 (314) June 2018 aka ‘The Orange Rag’ jurisdictions, it often comes down to lack of consolidation (something legislation.gov.uk has worked valiantly to address), while in other jurisdictions comprehensive open access to case law is a fundamental barrier. In other jurisdictions, filing systems are easy to access and build upon, but statutes and case law are difficult or impossible to get.
We’ve found that access to case law in particular in England & Wales – at least among modern Western democracies – is among the worst in the world. Not only are judgments of courts not really officially “published” but there are in fact barriers placed on their re-use. Many published judgments don’t even tell you who exactly the judge was who wrote the judgment. To any citizen of any country, this situation should be deeply unacceptable.
If the UK does want to be a world leader in law technology, we would humbly suggest that a good place to start is fundamental reform of how legal information is made available to the public and to businesses alike.
Perhaps by encouraging or mandating that such information is available in open, accessible formats – whether it comes from the courts, or from any quasi judicial bodies like the Information Commissioner’s Office – a shift could occur that other bodies could replicate. Such open data philosophies do exist within other UK Government bodies – but the judicial branch has often been left behind in this area.
Another way to think about it is this: if we were building a judicial / legislative system from scratch today: how would we construct the underlying technology to best serve the public, the legal industry and technology companies?
If the information playing field is levelled then new products and tools can be built on top of all that valuable public information. Of course Vizlegal would stand to benefit, but everyone – practitioners, the public at large and the entire nascent law tech ecosystem – would all gain from such a move too.
Vizlegal is a lawtech startup based in Dublin that aims to empower lawyers by indexing and graphing the relationships of all the world’s legal information. Sheridan (pictured top right) is a former freelance journalist who specialised in freedom of information requests and has written for media outlets including The Sunday Times (Ireland) and the Daily Mail.