Impacts and Effects of Publishing Legal Information in a Small Jurisdiction: Privacy v Open Justice
Jersey is the largest of the Channel Islands, with a population of 100,000. The Island covers an area of 45 square miles, is 85 miles south of the English coast and 14 miles from France. Jersey is a British Crown Dependency, but is neither a colony nor a dominion. It is not represented in the United Kingdom parliament and UK legislation applies to Jersey only if the Island expressly agrees that it should do so. The Island has its own legal system and courts of law.
Jersey’s economy relies on its offshore status and therefore it is important that legal information is publically accessible on all matters, thus improving Jersey’s status as an offshore financial centre. The unintended consequence of a need to sustain oneself in the global market is open access for all. Therefore improving the quality of legal information and expanding the quantity available in Jersey has followed the drive to remain competitive.
The Jersey Legal Information Board (or JLIB) was established in 1999 under the chairmanship of the Island’s Chief Justice. As a direct provider of legal information, JLIB is almost unique in being a government sponsored agency. JLIB’s vision is for Jersey’s legal system “to be, and be recognised as, the global best for a small jurisdiction”.
Historically, JLIB has played a major role in ensuring that the Island’s legal materials have been made available online to Jersey’s legal profession and to prospective investors and regulators worldwide.
The Jersey Legal Information Board's strategy is based on the following elements:
· To support Jersey’s position as a leading business centre.
· To make the law and legal processes more accessible.
· To promote the better co-ordination of Jersey’s justice system.
The paper is concerned with the second of these strategic aims and to understand how JLIB has reached the level of provision, (which is beyond some other jurisdictions), whereby it has now to consider what its publishing and why. It will be necessary to give a brief background as to what gave rise to the creation of Jersey Legal Information Board 15 years ago.
Jersey had a long-standing favoured tax position, dating back to 1394 when Jersey was permitted to export goods to England free of tax. A strong, well-fortified Jersey was essential to England during the long-running wars with the French, and tax-free status was deliberately designed to contribute to this. When the Island ceased to have any strategic value to the UK between 1851 and 1911, the unique tax position was eroded but not abolished altogether.
During the 2nd World War, the island that had once been so vital to England’s security was abandoned by the British as being of no strategic importance and therefore not worth defending. During five years of German occupation most economic activity was limited to food production in order to keep from starvation, and after the occupation, as elsewhere in the West, manufacturing started a slow decline. By the 1970’s Jersey’s traditional industries of agriculture and tourism had also declined; together, they now provide only 5% of the Island’s Gross Value Added (or GVA).
In the years since 1970, the boom has come in the financial services market which provides 40% of GVA and employs over 22% of the Island’s workforce. It is self- evident that the government would consider it important to put laws in place to support its claim to being a well regulated jurisdiction. It is imperative for the economy that the outside world perceives Jersey as a desirable place to do business, and that means having laws and processes that are both easily understood and seen to be working well. Judgments from all cases, but particularly civil law cases pursued under the Companies or Trusts Laws, can be used to demonstrate the fairness, efficiency and transparency of Jersey’s courts when doing business offshore.
2. The establishment of Jersey Legal Information Board
JLIB was established partly to support the rise of the financial services sector and, shortly after it was founded, started placing legal materials online on its website. In relation to the website, the aim was to provide online access to all of the Island’s legislation, all judgments of the courts and other legal materials. Since then, an annual Revised Edition of the legislation has been added, and a separate Revised Edition with case law annotations is published on an ongoing basis. As some laws are still in French, (the language of the court until relatively recently), a project is underway to provide ‘unofficial’ translations to assist the public in their understanding of the law. In addition, the website has an online digital library with books on Norman and other customary law dating back to 1535.
The structure of JLIB provides for an elected member of the government to be appointed as a Board member. By default, this has always been the Minister for Economic Development (who has responsibility for inward investment and development of international trade). Other members include the Attorney General, the Judicial Greffier (head of administration of the Courts), the Greffier of the States (head of administration of the States Assembly) and the Law Draftsman, all presided over by the Bailiff (or Chief Justice), as well as other co-opted members from the local legal fraternity and the States of Jersey Information Services. The full Board meets annually to approve the accounts, with a strategy workshop towards the end of each year to determine the direction for JLIB for the next three years. The Executive Group of the board meets alternate months to monitor progress of the business plan.
3. To make the law and legal processes more accessible
Although JLIB was originally set up to service the emerging financial services sector, it had from the start a second strategic aim, that of making the law and legal processes more accessible to the population. However, it wasn’t until possibly six years ago that the professional service had sufficient website content such that attention could be turned towards the citizen’s needs.
3.1 Delivery of citizen information
In 2008, JLIB joined the Free Access to Law Movement FALM and, in 2010 began to look at what the public needed in the way of legal materials. One of the first areas analysed was the website’s provision of legal guidance and advice with a view to improving and extending that provision, Jerseylaw has a section in which was placed any guidance from the Court service or any other department which would assist the citizen with a legal problem. It was found that the section in question was seldom accessed. That discovery led to a user group meeting in which it was suggested that JLIB asked other organisations, such as the local reference library and the Citizens Advice Bureau (CAB) what their level of enquiries were. The answer was a revelation – CAB's hits on the website exceeded JLIB's by a ratio of 30:1. The evidence suggested that service delivery to the public should logically be via CAB ‘s website, but CAB had neither the funds nor human resources for the extra work this would entail.
The solution to this dilemma was three-fold.
· As a first step JLIB offered a small 3 year grant to enable C A B to update its website, server and PCs, which were elderly, slow and liable to frequent crashes.
· Secondly staff from the Court Service and other departments that produced advice notes would continue to do so, sending them to JLIB to be forwarded to CAB.
· Thirdly, CAB and JLIB jointly approached local law firms requesting that, in exchange for acknowledgement and a link to their website, they would keep certain areas of the CAB website updated. In other words lawyers who focussed on a specialist area were asked to maintain the advice on in their area. That cooperation continues to this day – when legislation changes, firms update the advice.
When the first three years collaboration ended last year, the benefits were clear.
· JLIB, by using CAB as the delivery mechanism, did not have to build a citizens portal which may never have had the amount of usage that the CAB website enjoys.
· CAB was able to improve the service it provides, both to the public and also to its volunteer advisors who rely on the information on its website and refer to it constantly.
A new three year plan is now underway, funded by JLIB to extend access to the public. It is intended to tackle the problem of advice being written by staff who deal with legal matters on a daily basis, and therefore write in a ‘high-level’ language which the public (especially those for whom English is not their first language) may struggle with. After discussions with CAB it was decided that it would be useful for a specialist to
· rewrite the advice in plain English
· look at the gaps in provision,
· approach departments and agencies with a view to provide new or updated information, and
· provide scenarios and possibly short videos to step the enquirer through the law and its processes.
It is modelled on Hong Kong Community Legal Information Centre . At the end of the three year cycle an assessment will be made to determine the outcomes. It is hoped the measures will
· increase traffic to the CAB website
· relieve pressure on the CAB staff and volunteers with less ‘walk-in’ enquiries
· assist CAB staff and volunteers to answer questions and have them understood more easily.
At the end of the three year period consultation will take place with CAB to establish future needs and whether or not support from JLIB is still required.
3.2 Provision of legal materials to the public.
In 2010 the Jerseylaw website was restructured. Whereas previously the Jersey Law Reports had been available to the public and the unreported judgments placed in the ‘professionals only’ area, a decision taken in the interests of open access reversed the arrangement. Careful preparation was needed to ensure that sensitive unreported judgments were redacted and a ‘Restricted’ area was created within the professional area in which to place them.
The aim of increasing access has been very successful, almost too successful, because like other small island jurisdictions, Jersey now wrestles with the problem of balancing public interest and open justice with the privacy of the individual.
“In a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice. The publication of findings of guilt are of value in and of themselves.”
Although the concept of open justice can be traced back in most European jurisdictions to the 19th century, it has been tempered and balanced thus:
“… the pragmatic reasons supporting the need for public access … are typically balanced against the pragmatic reasons supporting the need to restrict public access (for example … protecting the rights of individuals to privacy).”
4. Privacy versus open justice
4.1 Privacy Issues
In the past, when judgments of the Jersey courts remained in “practical obscurity”, that is published in hard copy, available in a limited way but relatively unknown to the majority of the public, there were few privacy issues (the effort required to extract them exceeded the desire to view them). Judgments were distributed to lawyers in hard copy form; they were not filed in the public library but were available to the public on request. However, once they were published openly on the Jerseylaw website, Googling a name became a pastime for the idle or inquisitive. JLIB has received complaints from people who committed serious offences as young adults were sent to prison, but now 10 or 12 years later are trying to get their lives back on track. They feel haunted by the publication of judgments which can be read by prospective employers, people who would like to settle old scores, or people they meet in the street. This is especially significant to a small island population.
Neither the Data Protection Law nor the Rehabilitation of Offenders Law in Jersey restricts the publication (in full) of judgments on the JLIB website. However, it would not be unreasonable to apply a process of redaction (or “pseudonymisation”) to protect the identity of victims and witnesses involved in criminal cases.
JLIB has addressed these and other issues associated with being a small community, by working with the courts, the Children’s Service and the Data Protection Commissioner to agree a protocol for when a judgment should be redacted or indeed retained in a restricted area of the website to which access is limited to the legal profession. These include:
· Criminal cases involving under-18s – redacted.
· Criminal case victims and witnesses – redacted.
· Trust cases involving minors – redacted.
· Sexual assault case victims – redacted and restricted access.
· Public Law Children cases – redacted and restricted access.
· Adoption cases – redacted and restricted access.
Statute law already prevents the identification of victims of sexual assault, under-18s in criminal or public law children proceedings, and adopted children. This protocol therefore reflects and exceeds existing statutory requirements.
The Court has made it clear that, wherever possible, adult defendants in criminal cases should be named in the judgment. However, there are rare occasions where a judgment, on the direction of the judge, is not published even within the restricted area of the website, due to the fact that it is too sensitive to be placed on the website without redaction, but if redacted would lose its meaning (for example, where a sexual assault is committed by a parent or relative on a member of his or her family). In this case the judgment would not be published at all, and anyone beyond the parties concerned who wanted a copy would have to apply to the Court with a reason. In addition some Family Law cases never reach the website, mainly those containing distressing details involving children. Only the parties and their lawyers have access to a copy.
A recent case illustrates the complexity and consequences of the decisions. The Family court judge had decided not to release for publication the result of a complicated divorce case. However both parties appealed to the Royal Court and when the judge handed down the appeal decision, he wanted it to be published, and because it didn’t make sense without the original judgment, that had to be published too. A great deal of redaction had to be done to both and then they were placed in the restricted area where only legal professionals have access. Part of the case had centred on the wife’s mother allowing the couple to extend her house for them to live in while retaining some rooms for herself. They paid an amount to the mother who promptly gave it to her son, the wife’s brother to compensate him. Mother is now in a home; the son has power of attorney and wants to see what the settlement was in favour of the mother. The judgment is restricted, he cannot easily gain access to it.
A couple of recent examples reveal other dimensions of the privacy issue. A murder took place in Jersey. The murder victim had allegedly been responsible for the sale of drugs to a teenager who had subsequently died of an overdose. There was a strong suspicion that the murder had been motivated by revenge, and therefore it generated a high level of public interest. The suspected murderer was arrested and, once charges had been laid, his name was released to the media. The suspect had previously committed serious offences and immediately after his name became public there was a spike in website activity: the weekly figure for page views leapt from an average of 27,000 to 53,000 and attempts to access the judgment concerning the suspect’s previous offence numbered 11,000 times in the space of 48 hours. In order to protect the suspect’s right to a fair trial, the judgment was moved from the open area of the website to the restricted area, and a protocol will be put in place to ensure that, in the interests of justice, JLIB will be informed if similar circumstances arise in future.
The right of erasure or the right to be forgotten is a legal concept that is becoming increasingly commonplace, albeit that it relates more to matters in the civil justice arena as opposed to criminal justice. A judgment of the Court of Justice of the European Union (ECJ) on 13 May ruled that Google is liable for information about an individual that appears on a third party’s website. The case concerned a Spanish individual whose name, when entered into Google, threw up results concerning historical proceedings for recovery of debt which had been resolved many years previously; the Spanish data protection agency upheld his complaint against Google, who then initiated court proceedings to defend their right to publish such information. The ECJ found that Google was effectively collecting data and acting as data controller within the meaning of the 1995 EU data protection directive, and concluded that the data (even if initially processed lawfully) could eventually become incompatible with the directive if it was no longer relevant after a period of time. The Court ruled that Google should remove links to web pages that are published by third parties relating to a person’s name. The case is likely to have serious implications for operators of Internet search engines and we will return to this development later.
4.2 Dealing with Online Publication of Historical Cases
In Jersey, the reasoned judgments of the courts as handed down are referred to as unreported judgments. Since 1985, the formal, reported case law has been published in the Jersey Law Reports; these are the edited and indexed series of selected judgments (produced by a commercial publisher) concerning matters of lasting legal importance, and produced mainly for the use of practitioners. Prior to 1985, the formal law reports appeared in a series known as the Jersey Judgments.
Once an unreported judgment is redacted, any corresponding Jersey Law Report or Jersey Judgment will also be redacted. The old Jersey Judgments are progressively being converted from hard copy and placed online, current coverage running from 1966 to 1984. The unreported judgments from that period were distributed to the legal profession in hard copy only, without any redaction. The Criminal Justice (Anonymity in Sexual Offences) (Jersey) Law 2002 only made it an offence to name the victims of sexual assault in judgments from 2002 onwards. Consequently, the further back the Jersey Judgments and unreported judgments go, the greater the problems of privacy and the greater the need for redaction before online publication.
Going back to that era, it is possible to find names, addresses, ages, schools, and many other personal details which would identify victims and witnesses. In civil matters, particularly divorce and ensuing maintenance disputes, the judgments could be quite specific in relation to some of the more lurid details. The children referred to in those cases (now adults and many still in Jersey) are entitled to privacy, and some of the most colourful cases, where there is no longer a point of law to be gleaned, will not appear online at all.
4.3 Balancing of Interests
Balancing of interests involves an examination on a case by case basis, and balancing the need for judicial accountability with the need for the privacy of the individual. However, the over-riding principal is that justice must be seen to be done. Public trust and confidence in the justice system would be jeopardised if judicial hearings were routinely held in private. Justice being seen to be done is perceived by the public as a need for criminals to be punished for their acts, otherwise retribution and vigilantism by the public will prevail. As Jeremy Bentham asserted:
“Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial.”
The alternative point of view is that the combination of permanency, longevity and immediacy of online records can have a detrimental effect, and cause lasting damage to reputation. One example in Jersey is the Employment Tribunal judgments, which have recently been published on the JLIB website. Previously they were on the Tribunal’s own website which was difficult to navigate and thus, to all intents and purposes, suffered from “practical obscurity”. Not only is it upsetting for witnesses or HR staff who are mentioned in the judgment to realise that they can be googled, it has also been suggested that employers could now easily check judgments before making offers of employment and therefore that someone who had previously been involved in a civil action could be put at a serious disadvantage.
More recently, the tribunal has been agreed to examine the way in which it records decisions, and it may be in future that the barest minimum will be published, enough to bring out the points of law, but without naming all parties, including witnesses.
With regard to criminal offences, the Rehabilitation of Offenders (Jersey) Law 2001 deals with the rights of the individual under certain circumstances for convictions to be regarded as “spent” after a certain period of time, and therefore never alluded to or disclosed to anyone. The Law states that any person, who in the course of official duties, has custody of or access to any official record or the information contained in it shall be guilty of an offence if they disclose details of a spent conviction to another person. Later, it deals with defamation actions where publication takes place after the conviction is spent. However, it permits publication of judicial proceedings in any bona fide series of law reports or bona fide publication of judicial proceedings given for educational, scientific or professional purposes. Thus the Law enables current and retrospective judgments to be published indefinitely on the JLIB website without fear of defamation action.
Notwithstanding the legality of continuing to publish judgments online after a conviction is spent, jurisdictions are now asking themselves if there is a moral issue. Does an individual have the right to be forgotten once the conviction is spent? Should publishers be obligated to remove timed-out judgments from public websites, rendering them solely for use by the legal profession? While this might seem a simple option, it has not in the past, dealt with the wider problem of commercial search engines trawling the internet and pulling data from websites. There has been no way of bringing them to heel with regard to removing old data. However, returning to the recent ruling from the ECJ on Google - the lot of many people who feel aggrieved that old and potentially damaging information about them is out there for all to access, (and there are thousands of requests for removal in already), could be improved. Google has agreed to comply in certain circumstances with requests from individuals to ‘de-link’ search results where their privacy interests are implicated. There is no response from other search engines as this is written, but most commentators, while welcoming the ruling, doubt that it is enforceable. There are others who think it is the road to censorship.
However, since the EUCJ ruling came in, a person who has a judgment in the Jersey courts has applied and been successful in having the judgment taken off Google. The judgment in question was a civil matter and the outcome was that he had his appeal upheld. However the presiding judge while finding that the appellant was not proved to be dishonest or without integrity, thought it was more that he was incompetent. The man subsequently requested Google to take down the judgment and it did. Matters are moving rapidly and Google far from resisting the decision handed down in the EU court, rather, in what to a cynical mind may simply look like a smart PR move, has decided to remove innocuous material in order to create a dissatisfied rumble around the whole situation.
When considering the matter of individual privacy v open access to justice, and the difficulties Jersey faces with regard to whether or not to remove a judgment from the open area, the new EUCJ ruling may inadvertently assist JLIB. It could be a partial remedy for those who feel aggrieved by having a spent conviction in the open access section of the website. An individual who complains to JLIB in future that the continued publication of a spent conviction is blighting their life could be advised to apply to Google to have it removed. Once removed, no links would appear on Google and it would be a dead end - most people would not be aware of the existence of Jerseylaw and therefore would not know to look there.
However, a House of Lords sub-committee has published a report ruling that the EU’s so-called "right to be forgotten" rule is "unworkable and wrong".Baroness Prashar, the committee chairman, said: "We do not believe that individuals should have a right to have links to accurate and lawfully available information about them removed, simply because they do not like what is said." The rules could also leave individuals open to legal challenges from people who want them to remove material from their Facebook page, Twitter account, or even from their own email or text records, according to the House of Lords European Union Committee.
‘While the Report carries no direct legal weight, its strongly-worded critiques reflect growing unease in the UK over the impact of Costeja and the right to be forgotten. Over the past few months, the right to be forgotten also has been criticized by Simon Hughes, the Minister of State of the UK Ministry of Justice, and several journalists who have complained that search engines have wrongly removed links to their articles from search results. Whether the Report has any meaningful impact will become clearer once the negotiations regarding the General Data Protection Regulation resume later this year.’
There is a further erosion of rights when we look at a new breed of website suddenly on the scene. Globe24h is one example of such websites. It is a Romanian website that ‘acquires’ content and republishes personal details from court cases, tribunals, clinic trials and many other sources. Its Home page is just a site map of all the sources. Its mission, it claims, is that of open access and free legal information, but the real purpose of the site appears to be extract payment from people anxious to have content redacted. Nineteen euros, in fact. The site operator purports to comply with Romanian and EU privacy directives and is willing to redact personally identifying information free – all you need to do is send a letter (by post only, no email) and wait up to 12 months.
The only reason that this (otherwise obscure) site can operate in this way is because it’s linked to Google. It has no presence of its own, but when CanLII discovered that Globe24h had reposted content from the CanLII website and was demanding payment from individuals seeking to protect their privacy interests, one of the steps CanLII took was to ask Google to de-link the Globe24h search results. Google declined their request.
The internet, still in relative infancy, remains internationally ungovernable and disruptive at present and, as we have seen, internet companies do not respond necessarily favourably to requests to remove data from their websites. If JLIB removes timed-out judgments from its website in isolation, they will still be available to savvy Internet users, unless requests are made to have them removed from the large search engines in parallel.
That should not prevent jurisdictions from seeking a permanent solution to the problem. It may be that a trans-national approach will be needed, and the EU ruling is a step along the way, which may yet be reversed, but it should not stop individual jurisdictions finding a rapprochement with any aggrieved citizen who committed a misdemeanour, paid for it and now wants to be forgotten.
In conclusion, in a small jurisdiction such as Jersey, where it is essential to maintain competitiveness, openness is an economic as well as a public good. The spin-off from competitiveness inevitably brings the quality of openness. Being perceived as a stable place to do business has been enhanced by the breadth of legal materials on the website, and in turn this has led to a comprehensive service not just to the public, but in particular a growing army of litigants in person. JLIB will strive to provide a balance between the right of an individual to privacy and the public’s right to have access to legal materials in order to have confidence in the jurisdiction’s legal processes.