Still on the application of foreign law (see my previous post here), a second topic has caught my eye: that of free access providers of legal information – the ‘Legal Information Institutes’ (‘LII’s), directly related to the ‘Free Access to Law Movement’. I have never really reflected about them; even less, about what their role could be for the purposes of facilitating access to a foreign law. I have made a little bit of research on the institutions and the underlying principles, out of curiosity.
The existence of the LIIs was made possible thanks to the internet; free access to legal information would not be possible against distribution costs. As a consequence, the LII’s existence goes back only to the early 1990’s. The first institute was the Legal Information Institute at Cornell University Law School, set up in 1992 with a number of databases primarily of US federal law. The foundation of the Australasian Legal Information Institute (AustLII) followed in Sydney, Australia, in 1995. The next ones were the ZamLII (Zambia), the BAILII (UK and Ireland), the PacLII (Pacific Islands), the HKLII (Hong Kong), the SAFLII (South Africa), the NZLII (New Zealand), and the CanLII (Canada). Today, there are more of 50 LII or similar institutions – not all of them have borrowed the “LII” suffix- over the world.
The LIIs publish legal information from more than one source, i.e., not just ‘their own’ information but also data from other LIIs, for free access via the Internet. To this aim they collaborate with each other, also at the technical level (sharing of software, technical expertise and experience on policy questions such as privacy issues), through membership of the ‘Free Access to Law Movement’ (FALM). The FALM was officially born at a Conference in Montreal in 2002, where the Declaration on Free Access to Law was adopted. The document as amended, as well as a list of all members with links to their respective websites, is accessible here.
The Montreal Declaration defines public legal information as “legal information produced by public bodies that have a duty to produce law and make it public”. It includes primary sources of law, such as legislation, case law and treaties, and various secondary (interpretative) public sources, such as reports on preparatory work and on law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding.
The underlying principles of the Declaration read as follows: public legal information from all countries and international institutions is part of the common heritage of humanity; maximising access to this information promotes justice and the rule of law; public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; the government bodies that create or control that information should provide access to it so that it can be published by other parties. The Declaration acknowledges, however, that while access to secondary interpretative legal materials should be for free, permission to republish is not always appropriate or possible.
The FALM aims at being global, but so far only few LIIs are based in Europe (Austria, Cyprus, France, Germany, Ireland -and the UK-, Italy, Spain); the majority are located and represent jurisdictions outside Europe. It should be noted that some LLIs, like the WorldLII, have a global scope.
What precisely can be obtained from the LIIs, and who behind each of them is, are tricky questions: the answer is, it depends on the LLI. Regarding the first question, all the institutes share the task of promoting and supporting free access to public legal information throughout the world, principally via the Internet. In practice, however, the number and scope of the databases varies a lot: from many of the countries they are small, but they are very substantial from others; in some cases, like Canada, Australia, Hong Kong, Ireland or the UK, the LIIs’ offer includes content not available from commercial legal publishers. Another factor to be taken into account when assessing the usefulness of an LII is the policy on re-use: in some countries where doctrines such as the Crown Copyright still apply (for example, Australia), a LII is not at liberty to permit users to reproduce its data for all purposes.
On the second question, the answer is that LIIs are mostly based in academic institutions; some include as well libraries, and some, governmental or semi-governmental bodies. From this information it is already easy to guess that funding, and particularly long-term funding, is a problem. Private sponsorship and voluntary contributions to this kind of project, which is finally in the general interest, seems to be a question of culture and tradition: popular in some countries and almost unknown in others. As a consequence, the capacity of the LIIs to perform varies from one another; the divergences appear already at the level of the design and degree of sophistication of the respective websites. How often statutes and regulations are updated, how long it takes to have a decision published after delivery, depends as well on each LII.
Because every LII (and assimilated institutions) is different, a common assessment in terms of the authenticity, reliability or update of the sources provided, would be inappropriate. However, two things are clear: documents published by LIIs have no official status; and the initiative was not adopted, nor is being implemented, primarily for foreign users. Whether local courts and professionals rely on the services of an LII is a matter of trust. What I would say is that if they do – that is, if the documents published on a particular LII are routinely used for professional purposes, and accepted by the courts to assess the state of the law at the domestic level-, there is no reason not to follow for the purposes of bringing that foreign law before a court sitting in another country. But, of course, already finding out whether this is the case may be a cumbersome task.
— Further Reading: you may want to have a look at the Journal of Open Access to Law.