MINIMAL RULES
FOR THE DIFFUSION OF THE JUDICIAL INFORMATION IN INTERNET

Heredia Rules

[Purpose]

Rule 1. The purpose of disseminating judgments and judicial decisions on the Internet is to[1]:

a) provide knowledge about case law information and to guarantee equality before the law.

b) endeavor to reach transparency in the administration of justice.

Rule 2. The purpose of disseminating procedural information on the Internet is to guarantee the parties, or any person with a legitimate interest in the case, immediate access to any changes, summons and notifications regarding the legal procedure in question.

[The interested person’s right to opposition]

Rule 3. The interested persons will have the right to oppose, on request and free of charge, at any time and for any legitimate reason related to the particular situation, the processing of his or her personal data , except when the national law states otherwise . Should it be determined, by operation of law, or by request, that data about natural persons or legal entities are illegitimately disseminated, the respective exclusion or correction should be made.

[Adequacy of the purpose]

Rule 4. In every case, search engines will be adjusted to the scope and purposes of the dissemination of legal information.[2]

[Balance between transparency and privacy]

Rule 5. The rights to privacy and intimacy prevail when dealing with personal data about young children, adolescents (minors) or handicapped persons; or family matters; or data revealing racial or ethnic origin, political, religious or philosophic beliefs or trade-union activities; as well as to the processing of data regarding health, sexuality[3]; or victims of sexual or domestic abuse; or sensitive data or data which is restricted from being published according to the national legislation[4], or data which has been considered in case law issued by the authorities charged with the control and protection of fundamental rights[5].

In such situations, it is preferable that the personal information about the parties, other adjuncts, participants, third parties or witnesses are suppressed, anonymized or replaced by initials[6], unless an interested person has explicitly requested otherwise, and if their request is relevant with regards to the applicable legislation.

Rule 6. The transparency and the right to access to public information prevail in cases where the interested person has voluntarily taken on the status of a public figure, and when the legal process is related to the reasons of his notoriety.[7] Excluded from this principle are family matters and other matters under specific legal protection.

In these cases, despite the revelation of the names of the parties, other information, such as home addresses and other identificatory information must not be disseminated.

Rule 7. In all other cases, attaining a balance guaranteeing both rights should be sought.

This balance could be implemented:

(a) in case law decision databases, using search engines capable of ignoring names and personal data;

(b) in legal procedural information databases, using the unique case number as search and identification criteria.

Such information should not be presented in the form of lists sorted by criteria other than the case’s docket number or the file number assigned to the case or a thematic description of the case.

Rule 8. The processing of data regarding offenses, criminal sentences or security measures, can only be carried out under the control of public authorities. A register of criminal sentences can only be kept under the control of the public powers.[8]

Rule 9. When writing their sentences, other resolutions or proceedings[9], judges will make their best efforts to avoid mentioning irrelevant facts, or facts concerning third parties, and will seek to only mention the facts and personal data strictly necessary to explaining the grounds of their decision, and will try to avoid invading the privacy of the aforementioned persons. The above rule is not applicable when the data is recorded exclusively for statistical purposes, provided that rules regarding fundamental rights and the individuals’ privacy are respected. Furthermore, it is recommended to avoid giving excessive details that could potentially harm legal entities, or excessive details on the modus operandi, which could encourage people to commit a crime.[10] This rule is equally applicable to judicial edicts.

Rule 10. Whereas upon the reaching of agreements with legal publishers, the above rules must be observed.

[Definitions]

‘Personal data’ refers to any information relating to a natural person or legal entity, that is identified or identifiable, which has the capacity to information about the person’s personality, societal ties, ethnic or racial origin; or data that refers to a person’s physical, moral or emotional attributes; to a person’s familial and social life; to a person’s real or electronic address, a national identity number, a telephone number, estate, ideology and political opinions, religious and philosophical beliefs and convictions; a person’s state of physical or mental health, sexual preferences or any other information that could affect the person’s privacy or informative self-determination. This definition should be interpreted within the context of pertinent national legislative provisions.

Search engines: refer to search systems and their functions on Judicial Power Web sites that facilitate the location and access to all documents contained in such databases. These documents match logical search parameters as defined by the user such as the inclusion or exclusion of certain words or word groups, dates, file sizes and all possible Boolean operator combinations.

Voluntary Public Person: This concept refers to civil servants (whether system-based or elected) or private persons who have voluntarily taken part in matters of public interest (in this specific instance, an obvious and indubitable manifestation of his or her renunciation to a specific part of his or her privacy is necessary)

Anonymize: Processing of personal data that prevents the association of the available information to an identified or identifiable person.

[Scope]

Scope 1. The above rules are recommendations applicable solely to the dissemination of judgments and legal procedurall information on the Internet or in any other electronic format. These rules, therefore, do not refer to the access to documents available at courts, nor to paper publications.

Scope 2. These rules consist of a minimum standard for the protection of the rights to intimacy and privacy. Hence, judicial authorities, individuals and the organizations and companies disseminating judicial information on the Internet could use more strict protection procedures.

Scope 3. Although these rules have been conceived for Judicial Power Web sites, they also shall apply – because of the source of information- to commercial providers of case law and judicial information.

Scope 4. These rules do not include any formal procedures for persons or institutions to adhere to and their value is limited to the authority of their foundations and attainments.

Scope 5. These rules are currently intended as the best alternative or starting point for reaching a balance between transparency, the access to public information and privacy and intimacy rights. In the future, their entry into force and authority could be conditioned by new technological developments or new regulatory frameworks.

Heredia, July 9th, 2003

Recommendations approved at the Internet and Judicial System Seminar held in the city of Heredia (Costa Rica), on July 8th and 9th, 2003 with the participation of the judiciary, civil society organizations and academicians of Argentina, Brazil, Canada, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Dominican Republic and Uruguay.

NOTES (These notes are summaries of documents referenced and are not part the rules listed)

[1] Almost no Judicial Branch Web site has defined the purposes of the collection and dissemination of information. The Michoacán and Sinaloa transparency acts forced a definition of these purposes. The most relevant reference is the Committee of Ministers of the European Union Recommendations N° R (95)11 which have the following objectives:

- to facilitate the work of the legal profession by supplying rapid, complete and up-to-date information;

- to provide information for all persons directly or indirectly interested in a matter of jurisprudence;

- to make available more quickly new court decisions, especially in areas of law under development;

- to make available a larger number of court decisions concerning both questions of law and questions of fact (for example amount of compensation, of maintenance, length of a sentence, etc.);

- to contribute to the coherence of jurisprudence (reliability of law - "Rechtssicherheit") without introducing inflexibility;

- to enable law-makers to analyse the application of laws;

- to facilitate research on jurisprudence;

- in certain cases, to furnish information for statistical purposes.

[2] The basis for this rule is the Legal framework for Information Technology Act (Quebec, Canada, Article 24. "The use of extensive search functions in a technology-based document containing personal information which is made public for a specific purpose must be restricted to that purpose.”)

[3] This rule is based on the article 8.1 of the Directive 95/46/CE directive of the European Parliament and the European Council as well as on the laws which define sensible data in Argentina (art. 2), Chile (art.2.g.), Panama (art. 1.5.), Paraguay (art. 4) and on the bills of Costa Rica, Ecuador, Mexico and Uruguay. Also see Recommendation 01-057, November 21th, 2001, of the National Commission for Data Processing and Liberties:

(1) the publishers of case law databases which can be freely accessed on Web sites, in order to respect the right to privacy of the persons concerned and the indispensable right to oblivion should refrain from mentioning the names and addresses of parties to proceedings or witnesses therein;

(2) the publishers of case law databases that can be accessed either via the Internet against subscription or bond payment or by CD- ROM, should refrain in the future, in order to respect the right of privacy of the persons concerned, from mentioning the addresses of parties or witnesses therein;

[4] All Latin American legislations are unanimous in supporting the protection of children and teenagers. Many countries of this region have particular categories of sensitive data, while others are introducing these categories in new bills. In some cases the enunciation is more extensive, such as “personal attitude” in Panama, or “penal records” in Costa Rica bill. Also, case law is very voluminous in some countries.

[5] For example the AIDS Act (Argentina) —article 2 (d) y (e)— restricts the publication of the names of those who are infected with HIV, the Ley de Expresión y Difusión del Pensamiento (Dominican Republic) “Article 41. There is to be a total ban on textually publishing the acts of accusation of the Distric Attorney and the other acts of criminal or correctional records that have been read in public hearing” and other Press Acts restrict the publication of penal accusations (for example Mexico (art 9) which includes divorces and paternity suits).

[6] See Acuerdo del Pleno de la Suprema Corte de Justicia de la Nación 9/2003 (27^th May, 2003), which establishes the bodies, criteria and institutional procedures for transparency and access to the public information of that Supreme Court:

Article 41. The Supreme Court final judgments constitute information of public nature and will be spread through any means, whether in writing or by electronic or any other means that technologic innovation make possible.

Article 42. In order to respect the parties' right to intimacy, personal data will be omitted when making judgments public, if these data constitute confidential information according to the terms defined by the Commission. And this without detriment for the recourses in front of this Supreme Court, and before pronouncing the judgment the parties will be able to oppose to the publication of those data, towards third parties, the result being those data being confidential.

In any case, twelve years after the agreement has come into force, under the provisions of article 13 and 15 of the law, files regarding matters of penal or family nature constitute confidential information, and therefore personal data about parties will be omitted when making the proceedings public.

In other matters within this Supreme Court competence, which are not of criminal nor family nature, the right of the parties to oppose to the publication of their personal data should be indicated to them in the first decision which is pronounced, explaining them that the absence of opposition would mean that they have given permission to publish the judgment without omitting the personal data.

These restrictions to the dissemination of judgments do not apply to those persons who are legally authorized to request copy of them.

[7] The Declaration of principles on freedom of expression approved by the Inter-American Commission on Human Rights uses the concept of "voluntary public persons": "10. Privacy laws should not inhibit or restrict investigation and dissemination information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."

[8] This rule corresponds almost point for point with Article 8.5 of the Directive 95/46/CE of the European Parliament and the European Council and is consistent with the vast majority of national laws on judicial registers and with case law.

[9] 'Edicts' could also be considered (for example in edicts wherein parents are called upon to authorize their children to travel abroad, personal data about the children and the parents are included in such edicts, which are also available and easily accessible in the newspaper Web sites).

[10] In cases in which legal entities are involved, efforts to avoid disseminating information about industrial property or trade secrets should be made. As for the modus operandi, the standard refers to comments in relation to crimes that require a certain sophistication (i.e. kidnapping or embezzlement).

MINIMAL RULES FOR THE DIFFUSION OF THE JUDICIAL INFORMATION IN INTERNET

[Purpose]

MINIMAL RULES
FOR THE DIFFUSION OF THE JUDICIAL INFORMATION IN INTERNET