The Meaning of 'Free Access to Legal Information': A Twenty Year Evolution

Abstract:     
Free online access to legal information is approaching maturity in some parts of the world, after two decades of development, but elsewhere is still in its early stages of development. Nowhere has it been realised fully. The main question asked in this paper is “what should 'free access' mean in relation to legal information in order for it to be fully effective?” As with software, we must ask whether free access to law is ‘free as in beer, or free as in speech?’

The paper first reviews previous implied and explicit attempts to answers this question, identifying six principal attempts: (i) the example set by the LII (Cornell) and LexuM in the early 90s; (ii) AustLII’s 1995 formulation of the obligations of official publishers; (iii) the 2002 Declaration on Free Access to Law; (iv) the ‘Guiding Principles’ for States formulated by a 2008 expert meeting convened by the Hague Conference on Private International Law; (v) the ‘Law.Gov principles’ developed by Public Resources.org in 2010; and (vi) the draft Uniform Electronic Legal Materials Act recommended in 2011 by the US National Conference of Commissioners of Uniform State Laws.

Analysis of these six formulations shows that, over the last twenty years, a substantial amount of international consensus has developed on what ‘free access to legal information’ now means. Up to 30 separate principles can be identified. Most are found in more that one statement of principles, and many are now relatively common in the practices of both States and providers of free access to legal information (both government and NGO providers). Many concern measure to avoid the development of monopolies in the publication of the core legal documents of a jurisdiction. Which principles are essential to the meaning of ‘free access to legal information’, and which are only desirable, is usually clear.

Two complementary meanings of ‘free access to legal information’ emerge from this analysis. The first states the obligations of the State in relation to ensuring free access to legal information – but not necessarily providing it. The key elements concern the right of republication. The second meaning states the conditions under which an organisation can correctly be said to be a provider of free access to legal information. We argue that a better definition is needed than the ‘consensus’ suggests, and suggest one which is based on avoiding conflicts with maximising the quality and quantity of free access.

One use of such a set of principles is to help evaluate the extent to which any particular jurisdiction has implemented free access to legal information. A brief example is given of Australia, a county with a generally good record but some deficiencies.

Finally the paper considers what steps should be taken to most effectively realise a reformulated concept of ‘free access to legal information’, by civil society (including legal information institutes), by States at the national level, and at the international level.

Number of Pages in PDF File: 33

Keywords: legal information, free access, open content, legal information institutes, free access to law movement

working papers series