Providing Access to Justice Data for Legal or Tech Innovation in the UK

Providing Access to Justice Data for Legal or Tech Innovation in the UK Presented by: Mrs. Smith Date: March 16, 2024 Overview - Background and scope: justice data for legal/tech - Three constellations of grounds for processing - The boundaries of legitimacy Background - The HMTCS digitalization agenda and its creation of substantial amounts of data - Commercial interest in justice data to produce cutting-edge legal analytics - Potential to enhance access to justice by providing legal advice at the fraction of the normal cost Research Question - Can the UK Ministry of Justice rely on a lawful basis in data protection law to provide access to its datasets for commercial entities working in legal analytics? - If yes, which one? Scope: Justice Data - Many types of 'justice data' - focus here on textual data, mostly judgments due to the potential to enhance access to justice and relevant policy developments in the UK (e.g. TNA-MOJ-BAIILI agreement) Scope: Personal Data - Identifiability is context- specific - data protection law - not always applicable - Yet, such information as the name of the judge(s) and lawyers representing the parties likely to be needed Scope: Applicable Law - The Data Protection Act (DPA) 2018, incorporating the EU GDPR - The Digital Economy Act (DEA) 2017 - Human rights law Three Potential Constellations - MoJ/HMCTS/Judiciary (C) [Public interest] + Commercial (P) [Public Interest] • Legal analytics serve public good (A2J) - commercial entity cannot determine purposes of processing to pursue other for-profit purposes - MoJ/HMCTS/Judiciary (C) [Public interest] + Commercial (C)/(P) [Legitimate Interests], [Public Interest] • Public-private data sharing collaboration which serves both the delivery of a public good (A2J) and the pursuit of a commercial interest (for-profit provision of legal analysis) - need for commercial entities to demonstrate contribution to the public good and compatibility with their for-profit purposes - questions about 'further' processing - MoJ/HMCTS/Judiciary (C) [Legitimate Interests] + Commercial (C) [Legitimate Interests] • Legal analytics serve legitimate commercial interests of the 'third party' or legitimate interests of MoJ/HMCTS to boost market competitiveness for justice data-driven innovation - more scope for commercial entity to determine purposes and means, but also need for demanding safeguards to ensure that balancing is in favor of the LI - C = Data controller - P = Data processor Upshot - In principle potential invocation of public interest • Although regulatory guidance is skeptical apart from clear-cut cases of private companies serving the public good (e.g. water companies) - No 'public interest' washing • Proportionate relationship between 'public interest' and 'legitimate interests' must be observed - Boundaries • Limitations and safeguards must be observed Difficulties With The Public Interest - Before COVID... • A29 WP the 'public interest' can be invoked by public bodies with official authority or private bodies mandated to disclose data to such bodies - ...during COVID • - European data protection authorities' invocation of public health interests Data =/= water • Private bodies must overcome high hurdles to demonstrate a public interest Exploring Legitimate Interests - The ICO Legitimate Interests Assessment - Existing case law - = The continued applicability of existing principles and guidance ICO's Legitimate Interests Assessment - Purpose • - - What is the legitimate interest in this context? Necessity • Is the processing necessary to achieve this interest? • Balancing Do countervailing factors nevertheless render this data processing inappropriate? Identifying the Legitimate Interest - - Legitimate interest as a broad term • Excludes unethical and unlawful uses of data • May permit trivial and controversial interests Still, specificity is vital • Is a need for some clarity through the lens of 'benefits.' • Relevant benefits may be accrued by a range of actors Exploring the Concept of 'Necessity' - May be less then essential but must be 'proportionate' and 'adequately targeted.' - Will depend on a case-by-case assessment of the different data processing activities possible in this space. Striking a Balance - Balancing • Do countervailing factors nevertheless render this data processing inappropriate?  The nature of the data  Reasonable expectations  Impact and safeguards Finessing the Application - Context-specific (C-468/10) notion with the result of the balancing of the opposing rights and interests not able to be 'definitively prescribed' - On the one hand - necessity, reasonable expectations of data subjects, additional safeguards (A29 WP) - On the other hand an elastic (C-13/16) and accommodating legal category where 'the application of (...) necessity shall not turn the realization of a LI into a Kafkaesque treasure hunt' (AG in C-13/16)