Vol. 3.3, December 1999


Access to Public Information: A Fundamental Right

Are legislative materials and judicial decisions public or private information? If they are considered to be private information, should they not be public? This is not just a matter of intellectual property law, but also a very fundamental question of public policy. Law matters to all of us, and the rules and legal decisions which constitute the law should therefore be freely accessible to all. For that reason, in many countries draft statutes, parliamentary debates and the final official versions of Acts are published by government printers. The materials are thus published on a non-commercial basis and can be freely copied. The same is true as to the publication of judicial decisions, although in some countries private (commercial) publishers take care of printing these. Examples are the United States, where West (http://www.westgroup.com/) was and is an important publisher of law reports, and the Netherlands, where Kluwer (http://www.kluwer.nl) has always been a major publisher in this area. By doing so, commercial publishers felt that they fulfilled a task not only for their own commercial benefit, but also for the benefit of the legal community. Furthermore, they added extra information, which was and still is quite useful: head notes, key words, indexes, etc.

In the Netherlands, things began to change drastically some ten years ago as a result of the political desire to privatise and deregulate government-controlled enterprises. Consequently, the Netherlands State Printing and Publishing House was privatised. Legislative information suddenly became commercialised information. Of course, the now privatised State Printing and Publishing House (abbreviated: Sdu) cannot be blamed for wanting to make a profit with this information: it is now a commercial enterprise and acts as such. In particular, it has built a website which is easily searchable (http://opmaat.sdu.nl/; the home website of the Sdu is: http://www.sdu.nl). However, although legislative materials has become private information, the policy question whether this information should be private remains. The wind has now changed again and the Netherlands government recently opened its own website, where legislative texts can be found at no cost (http://www.overheid.nl/op/) and since a few weeks the Netherlands judiciary has its website too, where judicial decisions are accessible for free (http://www.rechtspraak.nl). Before the judiciary website was opened, Kluwer opened a site of its own (http://www.jol.nl) where cases decided by the Netherlands Supreme Court can also be read freely.

The result in the Netherlands and, I am certain, not only in that country, is a mixture of public information made freely accessible through the Internet by public websites maintained by the government or by commercial publishers. In itself, there is nothing wrong with this, but it does create a very confusing picture. Some legislative materials can only be accessed through a commercial site, some are now accessible through a free public site. Judicial sources are available on CD-ROMS published by a commercial publisher, some also on a free public site maintained by a commercial publisher, some on a free public site maintained by the government. Each site has its own limitations as to, e.g., the starting date from which information is available.

In my opinion, from a public-interest view, free, public Internet access to all legislative materials (past and present) as well as judicial decisions (past and present) is the expression of a fundamental right to public information. I certainly do not mean to say that commercial publishers should not have a role to play here. A commercial publisher can add information of its own, as publishers of law reports have always done. No one will argue against commercial publishers charging users for accessing public information while making use of these extras.

The new millennium we are about to enter will see, I am certain, the rise of a global information society based on ever increasing worldwide electronic networks and people gaining access to this World Wide Web. We should see to it that in this global information society access to legislative materials and judicial decisions is protected as a fundamental right; this is in the public interest.

In this issue of the EJCL you will find two articles: 'Numerus Clausus and the Development of New Real Rights in South African Law' by M.J. de Waal and 'Arbitration and Insolvency Proceedings: Claims of Ordinary Bankruptcy Creditors' by V. Lazic.

Sjef van Erp,

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