France Bans Analytics of Judges’ Decisions
France has banned certain types of analytics of judges’ decisions, to limit ‘forum-shopping’ by litigants. Therefore the identity of judges can no longer be used in evaluating, analysing, comparing or predicting their professional practices.
All for one…
In an on-going process of reform of the civil law and courts in France, in March 2019 the Reform for Justice 2018 law (the “Reform for Justice”) updated French law on the publicity of administrative and judicial matters. This includes making court decisions available to the public, free of charge and in electronic form.
…but none for all
However, while mandating free open data in relation to judicial decisions, the Reform for Justice also restrains how such open data can be used. Article 33 states that “the identity data of judges and members of the judicial registry cannot be used to aid in evaluating, analysing, comparing or predicting their professional practices.”
Therefore France now requires that judges’ decisions must be published in a manner such that the names and surnames of the parties, and of any third parties, are obscured prior to being made available to the public. By extension, where a publication is likely to undermine the security or privacy of the parties or third parties, any element within the decision that would allow for their identification, including the identities of the judges and members of the court registry, must also be obscured.
The competing arguments
The Constitutional Council of France (the "Council") approved the Reform for Justice in draft form and the competing arguments before the Council are interesting. In Decision of the Council 2019 - 778, it was considered whether the prohibition of such analytics would inhibit better knowledge of the relevant jurisprudence gained through such analytics and that such better information would enhance equality between litigants. However, the Council ruled that the then-proposed prohibition would be constitutional, finding that the law would “not infringe the right to a fair and equitable procedure or affect the balance of the rights of the parties”. The Council noted the concerns that the use of such analytics of decisions on a judge-by-judge basis could facilitate strategies to choose courts and judges, which would likely alter the functioning of justice.
Consequences of breach
Therefore in France it now is an offence to compile and report on judges’ identities in order to decipher their professional practices, aligning this practice with the processing of personal data by unlawful means. In serious cases, this is punishable by a maximum term of imprisonment of five years and a maximum fine of €300,000.
Although this new law impedes the application of legal technology in France in certain circumstances, the very fact that the change was thought to be required demonstrates the potential of legal technology to disrupt the traditional legal industry. The legal sector uses artificial intelligence widely for data analytics and, while there may be further limited restrictions in France and elsewhere, this usage of AI in law will continue to increase rapidly and significantly.
Also contributed by Andy McDonnell and Stephen Traynor.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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