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Comments on the New CJC Guidelines on Bulk Access to Court Information

This post is a joint submission to Slaw, contributed by the following authors: Xavier Beauchamp-Tremblay, Pierre-Paul Lemyre, Sarah Sutherland, Ivan Mokanov

The Canadian Judicial Council (CJC) recently released a report titled “Guidelines For Canadian Courts – Management of Requests for Bulk Access to Court Information by Commercial Entities”.

Over the years, several parties from different sectors have contacted CanLII or Lexum to obtain bulk access to legal decisions from Canadian courts and tribunals. We never believed we had clear permission to redistribute this content and decide who should be granted or denied bulk access to legal decisions. In the absence of a framework, we perceived our role as enabling end-users to retrieve this information for legal research purposes, not overseeing how its redistribution should be handled. For those who want to learn more on that topic, we were invited to publish an article in a series of Policy Options magazine on digital government in 2019.

Needless to say we salute the release of the Guidelines and the work of its authors.

In due course, we may have some comments or requests for clarification on the substance of the Guidelines, but for now we acknowledge that the background section of the Guidelines mentions that the judiciary are “the stewards” of court information, and as such, they have “a clear charter to establish mechanisms to maintain control over the quality and integrity of Court Information and to determine who should receive access to it.”

Corollaries of this general principle can be found across the Guidelines, including at section 1.3 where the authors conclude that “the judiciary are best placed to establish policies” as opposed to justice departments (unless this role is delegated to them by the judiciary). Another reference can be found at section 12 specifying that “Courts should maintain control over their own depositories of Court Information”. And again at Recommendation 5 introducing a judiciary-led approval process. We agree with the overall idea and these corollaries.

The Guidelines don’t specifically address the risks related to the indexing of court information by general-purpose search engines. From experience and through consultations with the judiciary in the mid-2000s, we consider search engine indexing to be the single most important consideration to bear in mind when assessing the risks involved in publishing legal information on the open web. As Section 5 specifies that the Guidelines are submitted as a draft and a starting point, we would be happy to continue to engage with the CJC on this topic, as well as on the rest of the document.

Once the Guidelines are implemented by Canadian courts and tribunals, Lexum, as the technology supplier of decision websites for a number of the courts and tribunals, is ready to enable bulk access. They are looking forward to this moment, and have the required technological components already in place. Courts using our solutions to power online access to their material already benefit from a “secure data repository location (e.g. a ‘clearing house’ facility) that is external to court systems” as defined by guideline 14 about security. In the same line of thought, the recommendation of guideline 21 to “implement measures on their websites to mitigate … risks regarding data scraping” have been handled by our solutions for a long time. That’s why heavy users of Lexum operated websites are sometimes asked to fill in a CAPTCHA in the midst of their legal research session. That’s also why we have designed a drill to quickly address panicked phone calls from university teachers during exams.

For the benefit of third parties aiming at accessing this information, there are Lexum’s product APIs to serve this emerging need. It is possible for courts served by Lexum to provide commercial entities with API keys enabling them to query and gather original files along with selected metadata in a structured format. This is coupled with customizable json feeds providing access to recent updates, so that any organisation meeting the requirements of a court bulk access policy will already be able to get the data it has been granted access to.

Overall we are glad that the Canadian judiciary is taking the lead in defining the principles framing bulk access to court information, especially in relation to court decisions, and we thank Dr. Felsky for having reached out to us for our views early in the process. CanLII and Lexum have long been waiting for clarifications and guidance on this issue. The CJC Guidelines set a solid framework to ensure that court information can be reused, analyzed, mashed with other datasets and more.

Comments

  1. Colin Lachance

    Shameful.
    For all CanLII’s success in opening the law for individual access, it’s one thing not to use your standing as instrument of the law societies and technology supplier to courts to advocate for bulk access, but quite another to use that standing to make its potential realization harder by emphasizing the barriers and positioning yourselves to profit court by court if and when the day of bulk access arrives. Having collected over $60 million dollars from law societies and others since your launch, and having over $8M in annual revenue at your disposal, you are capable of so much more. It’s shameful that you now choose to direct your privileged position towards self interest.

    Colin Lachance
    Executive Director, Legal Innovation Data Institute (lidi.ca)
    Former CEO of CanLII (2011 – 2015)

  2. Car companies with 5 star safety ratings show pictures of crash tests that may represent risks the consumer has not considered. They aren’t thereby discouraging people from driving.

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