Disruptive Proactivity

After the last post on this topic, there was the a discussion with Bailii in the comments, and their behaviour in regard of taking cases down has changed. This is to be warmly welcomed. In the absence of any public comment, it took me a little while to figure out what this new behaviour is.

Bailii, of course, continue to honour legal requirements as everyone agrees they should. This has only ever been about the cases where there is no legal requirement to remove the published legal decision of a judge.

Bailii have started stating why they remove cases, which, on the whole is sufficient. No one has ever argued that Bailii shouldn’t state why cases have been taken down, where they are able to.

We’ve not seen judgements disappear silently under questionable circumstances since the summer. Although I do wonder why this case disappeared and then came back. (We continue to effectively ignore cases in the Family court, where reporting restricions are common and the risks are clearly higher).

So what now?

My understanding is that the transparency offered by BailiiStreisand is having a deterrent effect on cases disappearing without a strong legal basis. In that there are now far fewer removals than we had previously seen.

Many of the “disappeared” cases are judgments that were published into the wrong category, and then reappeared with a slightly different name (so we can’t match them up) elsewhere. This is likely a result of Bailii’s manual publication process that may not have changed substantially since the mid-90s, it is surprising there are not more errors.

With over 6 months of data, it’s clear that the fears that BAILII have about broad access are unfounded, with the possibility of a continued debate only of the family courts. Their current mechanisms of blocking the internet would work adequately for the family courts, and allow caselaw for the majority of courts to be reasonably accessible from the internet – whether BAILII will choose to do this is entirely up to them.

Bailii remain a small charity who do not feel capable of standing up for legal transparency in the face of threats from litigants. We continue to hope that continued independent transpareny will enable Bailii to remain on the path they have chosen.

There is an ongoing need for restructuring in how judgements are published, as part of wider court transparency. It may be that BAILII become irrelevant before they are willing to change.