[Previous posts: Being Sued · Rettspraksis returns · Supreme Court appeal]
We have fabulous news! The Norwegian government has announced an effort to give the public access to court decisions – and credited the rettspraksis.no project for being the inspiration!
As inspiration, Frølich refers to the rettspraksis.no project ... which published court decisions freely on the web. Two of the volunteer behind the project, Håkon Wium Lie and Fredrik Ljone, were sued by Lovdata and finally lost in the Supreme Court.
—Their case was idealistic, and they tried to make it happen by themselves. They finally lost in the Supreme Court, but won my and many others' hearts. Their principles were clearly right, says Frølich.
This is a stunning development in a case that could easily have ended up with two people being sued and silenced by a mighty monopolist. Support from our fellow citizens, combined with our strong beliefs in public access to public information made us fight the lawsuit rather than back down. As a result, we liberated 166 years on Norwegian Supreme Court decisions. But the Supreme Court itself barred us from publishing decisions from 2003-2007. More on that below.o
The spokesperson for the government is Peter Frølich of the Conservative Party. Peter is a lawyer himself and shares the principles we have fought so hard for: court decisions are public records that must be publicly available. As these decisions can be used against ordinary citizens in court, ordinary citizens must have the right of access. And in 2019, public access means being on the web, for free, in searchable form. This way you can find and read court decisions of relevance if you face litigation.
One of the challenges of this new effort will be to anonymize court decisions automatically, to the extent possible. Anonymization is important. There are obvious privacy concerns for both victims perpetrators of crime. Therefore, one may want to remove names and birth-dates before publication. In the rettspraksis.no project I have learned that there are many ways to write a birthday, with countless variations in digits (leading zero?), punctuation (in Norwegian, we use the period sign to denote ordinal numbers), letters (should months be capitalized?), and even roman numerals. I've written impressive scripts to filter out birth-dates in all variations.
Should one also remove information about age? And gender? And personal pronouns which reflect gender? Continuing along this path, one may end up with an unreadable documents of little value. Common sense will help us decide when a person's right to information should trump another person's right to privacy, and vice versa.
While we rejoice for the recent announcement, it's also worth reflecting on what went wrong in the Norwegian court system.
In short, in May 2018, we were sued by Lovdata for having hacked their website. We had not hacked their website, but we immediately took down our website when we learned about the lawsuit, first through a journalist. In fact, we had copied court decisions from CD-ROM and DVD-ROM found in the National Library where anyone can use them. If you go to rettspraksis.no today, court decisions have been copied from the CD-ROM published in 2002. However, for a few weeks in May 2017 we used court decisions copied from a DVD-ROM published in 2005. It's the same decisions (bar the years from 2002-2005), but Lovdata claimed that the younger DVD-ROM was still protected by the European Database Directive. And the courts, including the Supreme Court, agreed with them. As a result, we had to cover the legal costs of Lovdata, roughly $80k.
In the courts, we argued that freedom of speech entitles us to publish documents that are core to a democratic society. And freedom of speech must trump the Database Directive. The courts didn't agree with us, they said we had done something illegal by copying files from the DVD-ROM. Let us, for the moment, say they were right: we did something illegal. Still, I will argue that the courts should have come to a different conclusion, for several reasons:
- the files from the DVD-ROM were only available for a few weeks, in a hectic launch phase
- Lovdata did not contact us in any way before filing the lawsuit
- we took the files down as soon as we learned about the lawsuit
- the decisions are the same, whether copied from a 2002 edition or a 2005 edition
- the lawsuit was full of technical errors, and wrongful accusations that were later withdrawn
- making us pay for Lovdata's lawyer writing wrongful accusations seems unfair
So, while we may be guilty of a something comparable to a parking violation or a punctuation error, I believe Lovdata's behavior when suing two individuals in a volunteer project is much more troublesome. By suing us instead of picking up the phone to learn the facts, they raised the costs of the case considerably, thereby putting undue pressure on us. I expected the courts to take note of their intimidation strategy, their wrongful accusations, and to weigh that up against our wrongdoing, if any. This did not happen. Lovdata's behavior was not discussed in any of the verdicts.
Why were the courts so strict with us and forebearing with Lovdata? I think it has to do with Lovdata's special status in the Norwegian legal establishment. They were founded by the Ministry of Justice and the University of Oslo. The Norwegian Parliament has a representative on the board, and so has The Norwegian Association of Judges and The Norwegian Bar Association. The Department of Justice appoints the chairman of the board. All lawyers in Norway depend upon the LovdataPRO service. A judgment, or even an unfavorable remark, against Lovdata would raise legal eyebrows. Awkward situations would occur at the next guild convention.
Still, fighting the lawsuit was the right thing to do. By doing so, we managed to free 166 years of Supreme Court decisions. We lost only 5 years of archives. Simple mathematics tells you that we actually won most of the case. This point was actually noted by the Court of Appeals (the step before the Supreme Court), and they therefore significantly reduced the financial penalties, in particular us covering the costs of Lovdata's lawyers. We are thankful for this small glimmer of fair judgment, even if the Supreme Court later reversed it.
We are also grateful to our many supporters. First and foremost, our lawyer Halvor Manshaus and his colleagues at Schjødt. Also, we received invaluable moral support from Norsk Journalistlag and Norsk Redaktørforening. The Fritt Ord foundation donated to our defense, as did many individuals in our crowdfunding campaign.
In the aftermath of the decision, a legal opinion by Are Stenvik has been published. It notes that the EU Public Sector Information (PSI) Directive may void the Supreme Court decision if Lovdata is deemed to be a «public sector body». EU's definition of a public sector body is an organization with all the following characteristics:
- they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
- they have legal personality; and
- they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;
I believe all of these to be true for Lovdata. The only point of discussion would be item 3 – Lovdata is not financed by the authorities, but the other clauses after the semi-colons – with the seminal «or» between them – are true.
Norway is under the obligation to implement the PSI directive. As such, I think the courts made a mistake when they didn't consider Lovdata to be a «public sector body».
We lost some battles in the court system, but we are winning the war for public access to court decisions. Our experience in the courts further strengthens our belief that court decisions must be made public. Even those that don't do justice.