Anonymization error: freely accessible court decisions in danger
Courts in German-speaking countries generally anonymize their decisions. This is time-consuming, which is one reason why most court decisions remain unpublished. Switzerland, Austria and recently two German countries hope that artificial intelligence can speed up the anonymization of court judgments. Of course, this doesn’t work completely without errors. And such a mistake now threatens the existence of the non-profit Openjur project.
Openjur is a free database of German legal decisions, financed by donations. Since 2009, the non-profit operator has compiled more than 600,000 documents that have already been accessed more than 400 million times – unlike commercial providers, free of charge. This may soon be over.
Non-profit project should be liable for legal errors
One person sued Openjur (Hamburg Regional Court, Ref. 324 O 278/23) because the database contained the decision of an administrative court that was not sufficiently anonymized. “In the legal proceedings, the plaintiff is now demanding injunction, information, damages amounting to several thousand euros and reimbursement of the pre-trial legal fees” from Openjur, which could cost almost 13,000 euros. This corresponds to the operating costs of five years, reports the project.
Openjur is not aware of any guilt: the document was reproduced as published by the administrative court. The anonymization error occurred at the court, which placed its decision in the database of its federal state, from where Openjur in turn obtained the text. The complaint from the person concerned arrived by fax on a Friday evening; Nevertheless, Openjur removed the text passages within 20 minutes. Nevertheless, a lawsuit followed.
If the court case results in Openjur being liable for further publications or being obliged to check the official publications again, the judgment could be the last entry in the database that has been maintained for 14 years. Volunteer managing director Benjamin Bremert explained this in an interview with Ars Boni: The audit effort and the incalculable financial risk are prohibitive for a small, non-commercial project.
Small is an understatement: In 2021, Openjur received 2,011.16 euros in donations, and in the year it was only 383.40 euros. The operating costs are slightly higher. Bremert doesn’t understand the lawsuit; after all, there’s nothing to be gained financially from Openjur. Openjur also relies on donations to cover the costs of the procedure. German taxpayers can deduct donations to Openjur from their income tax.
Germany is particularly strict
The German anonymization practice is particularly strict in international comparison. In many countries, decisions are only made anonymous in exceptional cases; those affected must also expressly request and justify this before the EU court. Austria also anonymizes, but in contrast to German courts, at least names the lawyers who represented the parties in court in the case law collection of the legal information system. This supports legal practice.
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By the way, this is not about anonymization in the sense of data protection law. Truly anonymized decisions, where no one can identify the people involved, would be largely useless. Finally, information about the facts of the case is important in order to make the decision understandable. And the facts allow those in the know to draw conclusions about those involved. Rather, German courts are required to find a balance between transparent justice and personal rights.
The publishing practices of the German federal states vary widely, reports Bremert at Ars Boni in an interview with university professor Nikolaus Forgó: “There are federal states that publish a lot (like North Rhine-Westphalia and Bavaria), and then there are federal states where a lot is actually published less published, for example “Schleswig-Holstein”, where the Higher Regional Court only published a low single-digit percentage of its decisions. The situation is getting better, but there is still very little coming from local courts.
In addition, neither the file format of the publications is uniform nor is there a republic-wide database. North Rhine-Westphalia is even a pioneer with its state database. Openjur would like to alleviate this situation by painstakingly collecting decisions from German courts by hand and publishing them in a searchable manner. In contrast to commercial providers, Openjur does not charge any fees.
“You are the nightmare of every authority because you produce a gigantic output with a truly ridiculous amount of effort,” says university professor Nikolaus Forgó to Openjur managing director Benjamin Bremert.
Some courts send decisions directly to Openjur, for example in Hamburg. In addition, Openjur actively requests certain decisions. In addition, there are submissions from third parties, usually those involved in the process. Finally, Openjur crawls official publications on the Internet.
Bremert suggests that the current case is by no means the first anonymization mistake made by a German court: Some courts would point out their mistakes to Openjur on their own initiative so that they can be corrected in the free database. In addition, a note can be submitted for every document on Openjur. Support through AI or at least automated display of decisions and their subsequent corrections by the courts in a uniform format would be a great help for Openjur, Bremert dreams.
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