skip navigation
search

Free Access to LawHow are free access to law (FAL) services being used throughout the world? And how can these services be made sustainable? This post describes a research effort devoted to answering those two questions. The effort is funded by IDRC, and is being conducted by the Chair on Legal Information at the University of Montreal.

[Lexum -- the Canadian legal technology firm that created and administers CanLII, the Canadian Legal Information Institute -- began its existence as LexUM, a research unit of the University of Montreal. In 2009, LexUM was divided into two parts. One part, called Lexum, became an independent company, while the second part, called the Chair on Legal Information, remained with the University of Montreal. For purposes of simplicity, "LexUM" and "Lexum" will both be referred to in this post as "Lexum."]

This post also describes my personal experience of participating in this research and learning about free access to law.

Project Overview

At the Chair on Legal Information at the University of Montreal, with a team of researchers situated all over the world, we’ve been working on two on-going research projects since 2009: (1) A review of legal information in four West African countries, and (2) a global study on the sustainability of Free Access to Law initiatives.

In conducting these research projects over more than two years, we have interviewed lawyers, magistrates, judges, law students, public servants, law librarians, and anyone else we could find who could talk about legal information in their countries.

Here is how I came to be involved in this effort.

Being Introduced to Free Access to Law

Earthquake in IndonesiaOctober 2009: a 6.8-magnitude earthquake hits Indonesia; U.S. President Barack Obama receives the Nobel Peace Prize; we’re in the midst of the global financial crisis; and unbeknownst to me, I’m about to discover a world I have never heard of before: the world of Free Access to Law (FAL).

The idea of Free Access to Law, although it has been around for nearly 20 years in Canada, was entirely new to me in October 2009. Prior to that, I hadn’t worked in the field of law, although I had spent years in its neighbouring field, political science, and worked for a number of groups and organisations involved in issues concerning human rights and social justice.

A fairly simple concept it seemed to me, this FAL creature. How much could there be to know about putting the law on the Internet? Through our research, I was to find that FAL is a very complex phenomenon — a world of knowledge and expertise, questions and debates, values and principles; and a movement in which hundreds upon hundreds of individuals from all around the globe are active — and that many factors influence the effectiveness and sustainability of FAL services.

The First Study: The Use of Free Access to Law Services in West Africa

For the first study, our purpose was to find out how lawyers were accessing and using legal information in our subject countries: Burkina Faso, Niger, Senegal, and Togo.

Map of West AfricaThe context for this study was the development of free access to law services in these countries. In the first half of the 2000s, free access to law (FAL) initiatives for the countries of Burkina Faso and Niger — JuriBurkina and JuriNiger, respectively — were launched with the coordination of Lexum. Once JuriBurkina and JuriNiger had begun operations, efforts were soon in place to develop similar sites in Senegal and in Togo. In Senegal, after expressing initial enthusiasm for the idea, the Bar eventually lost interest in the project and declined to cooperate in moving the project forward. In Togo, the Bar expressed its interest in the project a little late, so Lexum included them in a review of legal information project, while seeking their support for FAL efforts at the same time

In our first study, we sought answers to the following questions: What kind of information did lawyers in these countries need, in what format, how often, and for what purpose? How had these FAL Websites changed the way lawyers in these countries do their job?

Here are the key findings of the first study. First, many legal professionals in these countries knew little about the FAL sites’ existence, let alone their purpose. Second, JuriBurkina and JuriNiger were found to have had a limited impact on the way the lawyers who are their target audience conduct their research, mostly because the lawyers either didn’t know about the sites or didn’t find what they were looking for on the sites.

The legal professionals we met during our research were not talking about how they are and have been using the sites, nor how free access to legal information online has changed their research habits. Rather, we were being told about the potential of the sites, and what is likely to change -– and this only in the instances in which the respondent had ever heard of or used either JuriBurkina or JuriNiger.

Third, the content of the FAL sites in these countries was very limited. These content limitations appeared to affect users’ perceptions of the relevance of the sites. When we examine the sites, we see little in the way of updates and few documents. JuriBurkina, hosted locally, was also down on a regular basis until Lexum brought it back on its servers, where it’s been available ever since.

Fourth, contextual factors contributed significantly to these content limitations. In Burkina Faso, Lexum and the local Bar were hoping to launch an all-inclusive legal information portal for the country, where users could access statutes, statutory material, case law, and eventually secondary material as well. Yet restrictions on access to legislative content led to the launch of a site containing mostly case law — in a civil law country. In Niger, access to judgments was greatly limited following the 2010 coup. With a military regime in place, data sources were less than keen on handing over decisions.

Fifth, differential access to technology may have affected the perceived usefulness of the FAL services. Both the lawyers and law students we met in West Africa have greater access to mobile phones (that lack Internet access) than they do to computers with Web access, and the West African FAL sites are available only via the Web.

The Second Study: The Sustainability of Free Access to Law Services

Our second, global study is known as the “Free Access to Law – Is it Here to Stay?” research project. [Editor's Note: The first report related to this study is available here.] With partners in Asia, Southern Africa, and West Africa, we have attempted to evaluate how we could ensure that sites providing legal information for free to the public can continue to do so in the long term. We were interested not just in funding models, but also in organizational models, taking into consideration variables related to political, social, and technological contexts. We asked: Can a strong team of dedicated individuals, with know-how and funding, build sustainable FAL initiatives?

For this second project, too, we went around interviewing the usual suspects — users and makers of freely accessible legal information — in Burkina Faso, Niger, Mali, India, Indonesia, Hong Kong, the Philippines, Uganda, Kenya, and South Africa. We asked the makers of FAL such questions as: How were they running their sites, coping with limited resources, deciding on which projects to undertake, and managing relationships with data sources?

Here are some key findings of this study. First, contextual factors, particularly political and technological, are critical to an FAL initiative’s capacity to ensure sustainability. Without the participation of those who make the law, be it legislative or case law, it is difficult for an FAL initiative to fulfill its mission.

Technological contextual factors are of particular importance respecting the sustainability of FAL initiatives. Legal Information Institutes have elected the Web as the best way to offer public and free access to legal information: The Web is relatively cheap, and reaches unparalleled numbers of users instantaneously. But easy and inexpensive Internet access — unfortunately, like many things in this world — is not a universal fact of life. Although perhaps one of the most democratic forums of our time, the Web is still far from being available in most households around the globe. [Editor's Note: The ITU's The World in 2010 pamphlet provides recent data on Internet use and access in developing countries.]

Second, respecting securing user buy-in to an FAL site, we found that the key is to ensure that the information published is highly relevant: that it is the information most needed by the site’s users. If FAL is to continue to play the pivotal role it has had in defining how users access legal information, sustainability is going to depend on our capacity to adapt, such that we provide a service needed by specific groups of users operating in specific contexts.

Common Findings of Both Studies

The findings of the studies actually coincide in more than one way. The first concerns the importance to users of the perceived relevance of information available from FAL services. This may seem like an obvious conclusion, but it was not expressly stated by our respondents, and had to be inferred from our data. The users we met had a tendency to speak of the “comprehensiveness” of collections as being one of the primary factors determining whether they would adopt an information source for their professional needs. A strong majority also said that before searching online, they would refer to their firm’s private collection, to their national archives, or to their Bar’s library. But their firm’s private collections were far from being “comprehensive.” What those collections were, though, was targeted, and focused on the lawyers’ specific informational needs.

The second common finding concerns the importance of contextual factors to the sustainability and perceived usefulness of FAL sites. Many free access to law initiatives are faced with limited access to technological, human, and financial resources. For initiatives working under such constraints, carefully choosing which information to prioritize for publication is essential. Yet, as noted above, our research suggests that the information that is published must be perceived as highly relevant by the users of the FAL service, if users are to “buy-in” to the service for the long term and integrate the service into their research practices.

In addition, the contextual factor of technology seems to affect both the sustainability of FAL sites and users’ perceptions of the usefulness of those sites. The evidence from West Africa suggests that the inability of lawyers and law students to access FAL sites via mobile phones may have contributed to users’ perceptions that the sites lacked relevant information. Respecting sustainability, the persistence of low levels of Internet access in developing countries poses a possible obstacle to widespread public buy-in to Web-based FAL services over the long term.

Issues Needing Further Research

In addition to the issues raised by the findings discussed above, our research on the use and sustainability of free access to law services has also highlighted additional issues that warrant further study. The first concerns justice and the rule of law. Free access to law, as a movement, gives itself the mandate to reinforce the rule of law. But in societies where a great social distance divides those who produce the law and those governed by it, we may need to go beyond the concept of law and start thinking about justice.

The second concerns the role of law in highly unequal societies. What is the role of a free access to law initiative in a context in which the law and legal information are not considered to belong to the public? In which legal information — written in a language not spoken by the majority of the population — is effectively the property of the elite? In which the law in force is a tool of oppression and segregation?

The third concerns access to technology and the digital divide. Limitations on Internet access must be taken into consideration not only respecting sustainability and users’ perceptions of the relevance of FAL services, but also to insure the coherency of FAL’s mission to democratize access to legal information. After over a decade of free access to law around the world, we must never stop thinking about what’s next and how we can best ensure open access.

Reflections and Conclusion

April 2011: I’ve now worked on IDRC-funded free access to law projects with Lexum and the Chair on Legal Information at the University of Montreal for just less than two years. When I began this work in the fall of 2009, free access to law seemed to me to be a relatively “simple” concept. Now, after eighteen months of research, I’ve come to understand the complexity and large scope of free access to law: that it involves hundreds of professionals working on six continents; that its success and sustainability are influenced by numerous technological, political, and social factors;One Size Fits All and that its value depends in large part on cultivating relationships with users in their particular social and cultural contexts.

Keep an eye out for our case studies coming out this summer—but to sum things up for now, it would be simply that, like most things in the social sciences, one size does not fit all.

[Editor's Note: For an earlier commentary on the sustainability of legal information institutes, please see Mariya Badeva-Bright's VoxPopuLII post, Is Free Access to Law here to stay?]

[Editor's Note: The original version of this post contained an error. The original version of the post stated that the studies described in the post are being conducted by Lexum and the Chair in Legal Information of the University of Montreal. That information is incorrect. The studies described in the post are being conducted solely by the Chair in Legal Information of the University of Montreal. Lexum has no role in the studies. We regret the error. The post has been corrected as of 5 May 2011.]

 

Isabelle MoncionIsabelle Moncion is a research assistant at the Chair in Legal Information of the University of Montreal, and a project manager with Lexum. She holds an MA in political science with a specialisation in international development from the University of Quebec in Montreal, and a B.Sc. in political science and communications from the University of Ottawa.

VoxPopuLII is edited by Judith Pratt. Robert Richards is Editor in Chief.

Recently, LexUM, SAFLII and friends commenced a global study on Free Access to Law. It poses the pertinent question: is free access to law here to stay? The goal of the project is to produce a best-practices handbook, collect open-access case studies, and publish an online library on the subject.  The ultimate aim of all these activities is to enable future free access to law projects to choose best practices and adapt to local contexts that may have more in common than it initially appears.

This April we kicked off the project in the beautiful African bush with three days of introspection, sharing (for the teenage LIIs) and learning (for the toddler LIIs).

The project seeks to study and link two central concepts – the concept of success of a free access to law project and the concept of sustainability. Ivan Mokanov, who wrote the original project proposal, puts forward a simple thesis that relates the two:

By making law freely available, a legal information institute (LII) produces outcomes that benefit its target audience, thereby creating incentives among the target audience or other stakeholders to sustain the LII’s ongoing operations and development.

Linking free delivery of legal information to core benefits such as  support for the rule of law, open and accountable government and the importance of reducing insecurity in economic life can be difficult. Defining the subtler aspects of success thus involves exploration and new methodologies.

In a broad definition, sustainability is seen as the ability to deliver services that provide sufficient value to their target audience, so that either that audience or other stakeholders acting on its behalf choose to fund the ongoing operation and evolution of that service.

The project looks at a sustainability chain:

The Sustainability Chain Cycle

The words and brilliant logic of fictional psychopath Hannibal Lecter to Clarice Starling in The Silence of the Lambs  might serve as a guide to the sustainability chain:

First principles, Clarice. Simplicity. Read Marcus Aurelius. Of each particular thing ask: what is it in itself? What is its nature? What does he do, this man you seek?

The Need
Start with a need or a problem which a LII has to address. An often seen example in my part of the world is a country completely lacking any structures for providing legal information, even commercial print publishers. Sometimes, too, legal information is available, and sometimes freely so, via official printers, government bodies or other creators of the information, but that availability does not necessarily equate to usability.

Different stages of development highlight different needs, and the sustainability chain gives equal weight to addressing each. A free access to law project is just as successful if it manages to provide up=to-date information to judges who until recently applied the law from their 1970s law school textbooks as it is if it provides a state-of-the-art point in time legislation service to practicing lawyers. There seems to be an agreement that, as it grows through its stages of development — as Tom Bruce kindly defined them: establishment, incubation and “going concern” — a sustainable LII closes a chapter of success and continues on to respond to a new need within its target audience.

The Environment
The context in which an LII operates is equally important in determining the success and subsequently the sustainability of a free access to law operation. An LII will thrive in an environment that provides rich data sources, and is amenable to and capable of reform and change, with a policy and legal framework favourable to the free dissemination of legal information. To bring this to the nitty-gritty level – a free access to law project needs support all the way from the political top down to the secretary and clerk of the court.

An important environmental indicator is the availability of an infrastructure to support circulation of information. LIIs operating in developing countries often face the roadblock of lack of technology or lack of knowledge of the use of technology at the source. While computers have made their way into most judges’ chambers and courtrooms, most are not connected to the Internet, or if they are, the connections are so slow as to bar convenient use. A judge once relayed that in the rural areas, courts, well-computerized using donor money, are unable to make use of the technology due to lack of electricity. It is not unheard of a clerk or court secretary to delete judgments from a computer once they have been printed, thus leaving one single hard copy of a judgment for the court files.

Developing countries’ LIIs, as aptly pointed by my colleague Kerry Anderson in a post below, often involves getting information from this:

The Gutenberg Press into this Data

This inevitably begs a couple or more open questions for a “toddler” LII:

Who should foot the bill for the expensive digitization of legal material?

It has been the norm since the Middle Ages that the rulers of the land make the laws known to the subjects and citizens (I tend to include lawyers and government officials in the plebs) . But — assuming that it even recognizes this obligation, as the government of South Africa does — how does a cash-strapped government of a developing country fulfill its obligation to do so?  Donors donating directly to government to set up law reporting or print legislation? Donors via support for a LII? The interested public via support for a LII?

Would a successful strategy for a LII be to, first and foremost, address the policy and technology issues of provision of digital information?

Digitizaion of print materials and/or manual capturing of metadata, for example, cannot be deemed a successful strategy in the long run – it is simply uneconomical to continue to do so past a certain stage. Engaging stakeholders in education of use of technology or development of IT solutions to support workflows for delivering of judgments or passing legislation may be a way of dealing with issues of digitizing and automating delivering of law to the public. Standards of preparation of legal material, such as the ones developed by the Canadian Citation Committee or the endeavours of the Africa i-Parliaments project, adopted by all originators of legal information in a particular jurisdiction, will ease its dissemination and re-use. Campaigning for the passing policy or legislation, such as the PSI Directive, may be another strategy for a LII to enhance the efficacy of its operations.

How does an NGO engage with government over the digitization strategy?

The Ability

The need is recognized, we have a favourable environment for operations. Now, how does a lawyer, frustrated by the lack of user-friendly legal resources, with little to no know-how, convert the circumstances to a successful and sustainable free access to law project?

An LII needs to have the ability to respond to the need for legal information on at least two levels: organizational and technological.   At the  organizational level, a free access to law project needs to have organizational structure and support that is responds correctly to the context in which the project operates.

What are the benefits of the different organizational structures? Are they dependent on the development stage of an LII?

Among the members of the project’s workshop group, there seemed to be an agreement on the need for any new access to law project to possess adequate technology (in general),  and to possess or have access to legal information technology and expertise. The right technological and information-standards choices for particular environments are crucial to the correct response to the audience’s need.  While this carries a positive connotation, an emerging free access to law project needs to learn also to respond to user feedback in a measured way, and sometimes to even say NO.

Availability of Financial Resources

This couple-of-hundred-thousand-dollar question is one that every LII – from babies to teenagers – asks every financial cycle. Free access to law is quite expensive. While the product can be free, as in free beer, the process of creating the value and benefit to the audience can be quite expensive.

The ability of any LII to financially plan a few years ahead is crucial to the success of the project. It is important to have an audience that has identified value in a free access to law project – be it lawyers (CanLII and to an extent AustLII), or in addition to the preceeding, advertisers and aligned services (LII), or government (Kenya Law Reports), or international donors (SAFLII) , or individuals and lawyers (OpenJudis). Holding on to an audience and maintaining its willingness to pay relies on maintaining and improving existing product value. It is also crucial that money is spent in the right places.

The Handbook to be produced at the end of this study will identify how successful LIIs allocate budgets, according to value produced and how and who supports creation of specific benefits.

The next 6-8 months
In the next six to eight months the research team consisting of Dorsaf El Mekki (LexUM), Bobson Coulibaly (JuriBurkina, West Africa), Prashant Iyengar (Centre for Internet and Society, India), myself at SAFLII and a number of researchers from Namibia, Uganda, Zimbabwe and Kenya, will endeavour to collect data via interviews, questionnaires, case studies and web statistics on a number of indicators to reinforce the assumptions and prove the hypotheses of the study into free access to law – a study very much needed.

Mariya Badeva-Bright is the Head of Legal Informatics and Policy at the
Southern African Legal Information Institute (SAFLII). She is a
sessional lecturer at the School of Law, University of the
Witwatersrand
, South Africa where she teaches the LLM course in Cyberlaw
and the undergraduate course in Legal Information Literacy.
Ms. Badeva-Bright received her Magister Iuris degree from Plovdiv
University
, Bulgaria and an LL.M degree in Law and Information
Technology from Stockholm University, Sweden.

VoxPopuLII is edited by Judith Pratt.

[Ed. - Kerry Anderson has graciously served as our guinea-pig for this first episode of VoxPopuLII, and we thank her for her patience as we've debugged our process.  Full information about VoxPop can be found here, and in the series announcement here]

At its most basic level, a legal information institute obtains primary legal information from the public bodies responsible for producing that information, and makes it available online for free, full and anonymous access.

But what is a legal information institute when the courts from which judgments must be acquired are not themselves always sure where the final copy of the judgment is – either in electronic or in hard copy format?

What is a legal information institute when the courts from which judgments are sourced do not take the responsibility for ensuring that private information, including the names of minors and victims in sexual abuse cases, are removed from the judgments?Lesotho scanning team

What is a legal information institute when the legislation of a country is available only through the purchase of costly subscriptions from a commercial publisher contracted by the Parliament of that country?

What is a legal information institute when the last Law Reports available in a country date from more than 20 years previously? Or not at all?

What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?

All of the above describe situations SAFLII (the Southern African Legal Information Institute) has encountered in its dealings with jurisdictions across Southern and Eastern Africa. We have found ourselves assuming a responsibility for public access to legal information in a way that often places us in a quagmire of jurisprudence and legislative complexity that is at odds with the more traditional interpretation of a legal information institute. In one jurisdiction a minor is someone under 21, in another, under 18. What constitutes private information differs from one jurisdiction to another. Tax legislation requiring privacy is applied to companies in different ways according to the jurisdiction. Courts in Southern and Eastern Africa are notoriously under-funded: they lack computers, resources, and skills for tracking all of this information. Were SAFLII to rely on these courts to amend materials found to be problematic, our cupboard would be bare indeed.

Preparing judgments for scanning in a hotel room in UgandaEven more concerning is the role we have found ourselves assuming of the primary – and only – publisher of legal materials for some countries. Zimbabwe has not been able to publish its Law Reports since 2003 owing to the devastating collapse of infrastructure resulting from the political situation. Swaziland last published Law Reports in the 1980s. Many other countries have out-of-date Law Reports with no resources to continue the Law Reporting function. Others have written more eloquently than I on the necessity of having contextual law, particularly in common law jurisdictions. The point is singular and self-evident: how can the laws of a country be known if the laws of the country are not available?

In finding inventive and creative strategies for dealing with these situations, we have traveled quite far down the rabbit hole. We have conducted scanning projects in some courts to digitize a bulk of material that would otherwise not be available (unless you happen to be visiting Bloemfontein, Maseru or Kampala). We regularly undertake audits of the material on our website and anonymize material in accordance with our published policy – this policy having been developed with the assistance of judges and legal practitioners from the region. We have integrated our workflows with those of some of the courts in our jurisdictions. We have supported, and continue to support, the development of legal reporting structures – sometimes with the public bodies responsible – in countries where these are not available. We are looking at employing students to visit courts on a weekly basis to assist with locating and digitizing judgments handed down that week. We are engaging with lawyers in private practice to source legislation from some jurisdictions.

Of significance is the fact that we have never encountered resistance to the concept of Free Access to Law. The issues I have described relate to shortages of resources, skills and technical infrastructure – but not aspiration. Which is why it is critical that the strategies we employ do not undermine the self-sufficiency of nascent law reporting structures. It is perhaps in the subtleties of how assistance and support is offered that we can find ways to engage that are not overbearing. It takes just one person of vision and determination – a change agent – within a court, a university, a private practice, an NGO or a law reporting committee to unblock the system sufficiently that a legal information institute – whatever your definition – can develop. We therefore see our most important task as being to identify these change agents and to transfer our accumulated knowledge as well as that which we ourselves have been given by other legal information institutes. The transfer of knowledge has taken the form of training, internship and exchange programmes which we aim to grow further.

We have evolved our strategies according to the context in which we operate. Not all of them fit within the conventional LII approach. Some have been found to be questionable. But sometimes, further down the rabbit hole is the only place to go.

kerry_pic.jpgKerry Anderson is the Deputy Director and Head of IT for the Southern African Legal Information Institute (SAFLII). She has worked variously in web development, research and strategy for an advertising agency, IT startups and financial services corporates. She has been known to be a badge-wearing supporter of the Free Software Foundation and is an old-school Perl hacker. She has since applied her skills to the furthering of the aims of Free Access to Law – delighted to have found the perfect synthesis of Law and Code.

She has a BSc in Computer Science, a BComm (Conversion) and an MBA. Her MBA dissertation was on the impact of Open Innovation on software research development clusters in South Africa.

VoxPopuLII is edited by Judith Pratt.