Barriers to Accessing Legal Information
In this post, I would like to highlight the barriers to accessing legal information and ways we can help remove them.
Let’s begin by clarifying the difference between accessibility and availability. Material is accessible when barriers to the content are removed and they can be used by as many people as possible, these barriers can take several forms such as financial or technical limits to access. Material is available when people can easily use it, because it is free of legal and policy restrictions.
A legal document can be accessible, but not available. For example, a member of the public can go online and find the full-text of a relevant document published by the government, but because of Crown copyright they are unable to share or re-use that information without going through, what can sometimes be, a lengthy and daunting process of seeking permission (all the while it already being paid for through public tax dollars). A legal document might be available, but not accessible too. For example, a lawyer working in a remote area might see in an online library catalogue that a print book they need is available, but they live in a remote area where the library is difficult to get to.
You can also encounter multiple barriers at once. Imagine you are a self-represented litigant and are up against an experienced lawyer. The SLR is at a disadvantage because they might not have access to the same material. Even if they find a way to access the same information, they might have to pay to access it, and it could be difficult to figure out how to use it towards their case without having formal legal training. On top of that, if English isn’t your first language, you may need to hire a translator.
It is certainly a thin line between accessibility and availability. Wherever you stand, the important thing is that we are aware of the barriers that exist and do our part to try and remove them. Here is a list of more possible barriers with some examples:
Access barriers:
- Physical – Obstacles relating to the physical environment that prevent people from accessing legal information (e.g. A building that doesn’t have a ramp for wheelchair access, or the equipment needed to print materials is broken or outdated. This could also be related to a lack of resources to process requests for information)
- Geographical – Something that prevents you from easily getting from point A to point B. (e.g. Living in a rural area where there is limited access to transportation, or not being able to travel somewhere altogether)
- Technological – Barriers to information relating to technological infrastructure. (e.g. Not having a digital device to access online information, or having a device, but having weak or no internet access. This could also be not having the software to open or save certain digital formats, or the material not being compatible with screen readers.)
- Financial – Perhaps the most widely discussed barrier. Financial barriers occur when cost makes it difficult for someone to access the legal information they need. (e.g. hitting paywalls, or legal fees for assistance in interpreting legal information)
Availability barriers:
- Legal and policy constraints – This includes copyright mechanisms and restrictive licensing practices. (e.g. documents marked as classified, or difficulty locking down permissions.)
- Language – You could consider this an access barrier, but for legal information I think it’s important to highlight this as an availability challenge. More legal information is being made publicly accessible now than ever before, but this does not mean that it is always easy to use. (e.g. Material written using complicated legal jargon, or it not being available in your prefered language)
Publishing accessible legal information is one way to help remove barriers to legal information because it allows for free access and fewer restrictions to not just case law and legislation, but books, law textbooks, reports, grey literature, legal scholarship and more.
There are many factors affecting the publishing cycle in the legal environment that inhibit open legal publishing from moving forward. The examples listed above illustrate some common barriers, but it is not comprehensive. I think these additional factors deserve a post of their own, so stay tuned.
If you have examples of other barriers that you see or face in your work with legal information, please feel free to comment below or tweet me @a_lazear to continue the discussion.
With regard to law publishing, in case it’s of any use, see http://www.slaw.ca/2019/01/04/open-access-for-law-book-content/.
Working for a company which operates in multiple global jurisdictions, in a role which requires that I research and access vast amounts of legislation, I am constantly astounded by the barriers to accessing legislative content which I encounter on a daily basis.
The barriers you have described in your post are entirely accurate. The only additional observation which I might add is that a lot of local law, particularly in emerging economies, is only available in hard copy from select government offices and even then on a sporadic basis, which further reinforces the barrier of physical availability of the law. This makes it virtually impossible for people to know the law that applies to them, which in turn makes compliance with the law and enforce of rights extremely difficult.
As we license more and more content we previously purchased in print, we are excluding access to SRLs. Sure they can come in to the law library, but if they can only look at older editions of texts, how are they supposed to prepare?
Yesterday, in pursuing another very productive line of inquiry, I came across the term “open court principle”, a concept closely related to the issue of access to legal information. That term is mentioned in this article – https://ropergreyell.com/resource/bc-court-rejects-unions-argument-grievor-witness-anonymity/ – posted on a law firm website almost five years ago. The BC Court of Appeal decision it discusses is here – https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca354/2015bcca354.html.
In closing – at paragraph 88 – the Honourable Justice Madam Bennett says, regarding the question of whether or not “the open court principle applies to labour arbitrations”, “I would leave this interesting issue for another day.”
Why was that a question the BC Court of Appeal didn’t want to answer in 2015? Now I need to find out if it has since been answered. My guess is that it hasn’t.
The arrangement in Canada is that unions and employers have exclusive control over the conduct of labour arbitrations. Provincial labour statutes do speak about these proceedings, but in doing so they say nothing about the open court principle or access to information – the key piece of information coming out of these arbitrations being the record of the arbitrator’s decision, referred to as an “award”.
CanLII for a number of years has been publishing some of these awards. But not all of them, because they evidently rely on the arbitrators’ discretion to send them copies. And if anyone wants to challenge the conduct or outcome of an award with a complaint to a labour board (section 99 of the Code in B.C.) they need a copy of the award. Indeed in B.C. the labour board insists that the complainant provide a copy with their complaint, and very promptly. If one fails to do that the response from the BCLRB is what one sees in this recent decision – http://www.lrb.bc.ca/decisions/2020BCLRB060.pdf.
What is really startling about that is that the Code also says, in section 96 – https://www.bclaws.ca/civix/document/id/complete/statreg/96244_01#section96 – that the board (“the director”) must receive from the arbitrator a copy of the award within ten days of it being issued. So presumably the board already had the award it was demanding from this complainant. Nothing in the Code says that anyone other than the two parties – union and employer – is entitled to receive a copy of the award from the arbitrator.
This is an absurdity that that complainant probably didn’t, and doesn’t, appreciate, because most such people don’t have the requisite knowledge of how the labour law regime operates. The labour boards and everyone else employed in these regimes understands that. And as demonstrated by the BC Court of Appeal decision, our superior court judges are not inclined to address the resulting injustice. They seem in fact to find it amusing.
Legal information should also be readily accessible in formats for those with visual impairments, e.g., audio and/or braille.
For SRLs, just because lots of legal information is readily available, does not mean they will know how to use these, nor know which sources to trust.
The role of the trusted legal intermediaries will always be crucial.
As long as the demand for help is asynchronous, and as long as intermediaries hold regular office hours, meaningful access will be a hurdle.
Hi Robert – Thank you for sharing this! I had read your post and think it’s great. You link to many excellent resources. I learned a lot from Peter W. Martin’s article on “Possible Futures for the Legal Treatise in an Environment of Wikis, Blogs, and Myriad Online Primary Law Sources” and refer back to it often: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2648358. I’d be interested to know, do you have any further thoughts or opinions on observations in the open access to law environment since your posts was published?
Hi Lara! Thanks for sharing your thoughts and experience. This is a great illustration of how barriers to legal information can effect the greater legal system. If someone can’t access the law, how are they expected to know it? I think this makes a great case for government agencies (or any) to figure out how to make documents accessible as early on as possible. Taking steps to be proactive about information accessibility saves time and helps more people in the long term.
That’s a great question Karen! For legal information it’s often very important to have something that is current.
Thanks Alisa . Greatly appreciated.
Since writing “Open Access for Law Book Content”, although I have not directly addressed the question in subsequent articles, the topic is entirely bound up in other related ones, which I have sought to examine and which, perhaps, might be of interest. Key issues in these articles include the viability and future of law book publishing by whatever media, online legal content in general and matters of profitability and growth. Within and inseparable from those are questions of authors, their skills and requirements, all now under the cloud of Covid, which, to some extent, will affect the future.
The costs and complexities of doing high-quality, high added-value law publishing are significant and the temptation to dumb-down in order to try and get by “on the cheap”, maybe to create an impression of open access, are in evidence. This, I touched upon in my article, Rule One: Calculate Precisely Why You’re Trading Your Mustang for a Horse, http://www.slaw.ca/2019/03/07/rule-one-calculate-precisely-why-youre-trading-your-mustang-for-a-horse/, suggesting that publishing on the business of law is easier than but not the same as law publishing. For example, I am the editor of Barbican Association Newsletter, http://www.barbicanassociation.co.uk/wp-content/uploads/2020/07/BA-NEWSLETTER-AUGUST-2020-Final.pdf, which is accessible to all, free of charge. This depends, of course, on its authors and me providing our services at no cost, and production and distribution funding coming from our local authority, which in turn relies on the taxes and services charges which I and others pay. There are no free lunches.
Law publishing’s sustainability, expressed in its ability to deliver profits and growth from analytical writing and publishing, are increasingly questionable and it is debatable as to whether or not open access helps; I would suggest not, especially combined with Covid factors and profit margins which have been reducing over time. These issues were addressed in The Optimum Time to Buy or Sell Law Publishing Businesses, http://www.slaw.ca/2019/07/03/the-optimum-time-to-buy-or-sell-law-publishing-businesses/, and my most recently published article, Unknown Unknowns, http://www.slaw.ca/2020/07/08/unknown-unknowns/.
In this discussion, authors cannot be forgotten. What is in it for them? Their earnings from their efforts are normally pitiful, yet their contributions are enormous yet undervalued. I addressed the question of their relationship to law publishing and law publishers in Practicalities of Securing a Law Book Publishing Agreement, http://www.slaw.ca/2019/09/04/practicalities-of-securing-a-law-book-publishing-agreement/,and Authors and Editors Working With and Their Expectations From Professional Publishers, http://www.slaw.ca/2019/11/06/authors-and-editors-working-with-and-their-expectations-from-professional-publishers/, extending “Working with and writing for a law publisher to achieve law firm or corporate reputational and competitive rewards”, http://www.linkedin.com/pulse/working-writing-law-publisher-achieve-firm-corporate-rewards-mckay/. In my next Slaw article, provisionally entitled “Opportunities or Problems around First Editions”, I express some opinions on the diminution of ideas and innovation which otherwise creates new ideas, rather than rehashing old ones, but make the point that for prospective authors with new ideas, certainly when there is any hope of financial reward, securing publishing deals might be becoming harder.
Open access is part of the innovation debate. The taking and assessment of risk in circumstances in which innovation may deliver no financial reward is considered in Rear Window, http://www.slaw.ca/2020/01/01/rear-window/,“There’s No Success Like Failure”, http://www.slaw.ca/2020/03/13/theres-no-success-like-failure/, and Weapons of Mess and Disruption?, http://www.slaw.ca/2020/04/23/weapons-of-mess-and-disruption/. Rather, we seem to be seeing of late several initiatives, by which efforts to access and deliver book-based contact by publishers which are weak on added-value contact, from others which have long invested in it. Perhaps there are no short cuts.