The Meaning of 'Free Access to Legal Information': A Twenty Year Evolution
Keywords:free access, republication, authorised, information system
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 six most significant attempts over the last twenty years to answers this question are analysed to show that a substantial degree of international consensus has developed on what ‘free access to legal information’ now means. Of thirty separate identifiable principles, most are found in more than one statement of principles, and many are now relatively common in the practices of both States and providers of free access to legal information (government and NGO). Many concern measure to avoid the development of monopolies in 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. 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 propose one based on the avoidance of conflicts with maximisation of 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, by States at the national level, and at the international level.
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