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The digital transformation is, without a doubt, one of the main challenges facing any public or private organization that intends to carry out its functions effectively in the current technological context. For public entities this requirement becomes an obligation from the legal perspective, to the extent that the constitutional mandate of effectiveness constitutes a manifestation of the principle of good administration.
In the case of the Administration of Justice, we face a real collective challenge since its proper functioning is an elementary condition for the existence of a true rule of law. However, unlike what happens in other areas of the public sector - perhaps, for example, the tax - there is a social perception that adaptation to technological challenges is not taking place as quickly as social evolution demands.
The complete robotization of the judicial decision does not seem very feasible in the short and medium term, despite some emerging initiatives in relation to the use of artificial intelligence in this field whose effectiveness is not always demonstrated and, on occasion, has been the subject of relevant responses in particular as regards the evaluation of the risks and the ethical challenges involved. However, in the context of legaltech services, commercial initiatives related to the use of technology to facilitate the predictability of judicial decisions are increasing in the legal field. These are projects that, ultimately, are based on the reuse of documents and, in particular, judicial decisions.
In this regard, in France there has been an important controversy at the social and political level that has culminated in a reform of the Criminal Code that prohibits the evaluation, analysis, comparison or prediction when the treatment allows the holder of the judicial body to be identified. In Spain, the measures related to anonymization have currently only been considered for the parties to the process, and there is a consolidated practice of eliminating their real identity before publishing them. However, as can be seen in the official search engine of the Judicial Documentation Center (CENDOJ), judicial decisions are nevertheless accessible with full identification of the natural persons holding the jurisdictional body.
However, beyond the difficulties related to the protection of the personal data of the parties to the process, there are other restrictions that hinder an appropriate treatment of judicial decisions in order to carry out advanced analyses that could be taking as an starting point for consistent predictive functionalities:
- First, the official documentary fund is not exhaustive, since only the complete series of Supreme Court decisions are incorporated and, likewise, a selection - more or less exhaustive- of cases of other judicial bodies, mainly the Spanish National Court, the Superior Courts of Justice and the Provincial Courts.
- Second, according to the legal notice that appears when accessing the search engine, the use of the resolutions is limited to mere knowledge and consultation of the decision criteria of the Courts, in compliance with the provisions of the Organic Law of the Judiciary. However, “The reuse of this information for the elaboration of databases or for commercial purposes must follow the procedure and conditions established by the CGPJ through its Judicial Documentation Centre”.
- Thirdly, access for reuse purposes is subject to economic conditions designed to facilitate downloading and access for commercial purposes by legal publishers. However, such conditions hinder mere treatment consisting of a massive analysis of judicial decisions and, therefore, become a major obstacle to carrying out the procedures required by artificial intelligence.
Beyond such conditions, the reuse of judgments and other judicial resolutions in Spain was the subject of an important legal discussion that still remains to be closed. Indeed, the Regulation approved at the time by the General Council of the Judiciary was annulled by the Supreme Court through a judgment that did not go into substantive aspects. It was limited to consider the appeal for a mere competence issue in understanding that the Council of Ministers should be the body responsible for its approval. However, to date, no other regulatory initiative has been known to address the regulation of the singularities of the reuse of judicial decisions.
It is important to highlight that judicial bodies are subject exclusively to the rule of Law according to the Constitutional Text and, therefore, there is a reinforced public interest in facilitating mechanisms for monitoring their additional decisions to the institutional system of resources that, as is known, is subject to important legal limitations -not all decisions can be appealed- and economic imitations-the expenses to hire professionals and the imposition of costs are two obvious examples-. In this regard, on the one hand, transparency and access to information are legally recognized as tools that serve as an indirect control mechanism for certain actions, procedures and documents, although their scope is limited to certain moments - public visits - and the concurrence of certain requirements –be part of the process-. And, on the other hand, the greater opening of judicial decisions from the perspective of their reuse could facilitate their predictability and, in this way, strengthen legal certainty apart from any other commercial purpose.
Perhaps the future transposition of Directive 2019/1024 is a propitious opportunity to face this unfinished debate and, thus, lay the legal foundations that provide security to a sector in need of clear regulatory rules. In this regard, these rules should not only aim to facilitate reuse in the editorial field, but also to boost the social mechanisms of informal control based on Open Government and, in particular, the co-creation of digital public services by society.
Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).
Contents and points of view expressed in this publication are the exclusive responsibility of its author.
Documentación
Spain is the second country with the highest life expectancy in the world, only behind Japan. Spaniards live 83 years on average. This positive data is stained by a negative one: the low birth rate, which is leading us towards a population aging. This situation means that we need a more efficient health system to continue providing quality health services to citizens.
As in other sectors, the improvement of efficiency goes through the necessary digital transformation, in which data in general - and open data in particular - have a leading role. Open data can help us better understand the situation of patients and, together with technologies such as big data or artificial intelligence systems, facilitate early detection of diseases. In short, they can help improve both the management and the provision of services.
But in an area where patient privacy is essential, we have a series of doubts: What types of data can be opened? What does the legislation say about it?
The report "Open data and health: technological context, stakeholders and legal framework", prepared by Julián Valero, tries to shed some light on this situation. For this, the following objectives are set:
- Knowing the conditions, limitations and restrictions imposed by current legal regulations.
- Posing how the guarantees offered by the Law should be adapted to a new reality based on technological innovation.
The report begins by showing the current situation of the Spanish health system, gathering the challenges to be faced, but also the opportunities that come hand in hand with new technological trends, such as Internet of Things or the aforementioned Artificial Intelligence.
Once the context has been explained, the report focuses on the different stakeholders involved in the provision of health services, both public and private, and the main laws and regulations that affect each group. The novelties of the General Data Protection Regulation (GDPR) and its impact on the opening of health data are also addressed.
The report ends with a series of conclusions and recommendations to promote public policies in the field of health that drive improvements in the provision of health services.
You can download the full report below.
Entrevista
María Jesús González-Espejo is, with Laura Fauqueur, co-founder of the Institute of Legal Innovation (Instituto de Innovación Legal), a company specialized in supporting professionals, law firms and organizations in innovation and digital transformation projects. For this, they are based on 4 pillars: consulting, training, events and information.
Datos.gob.es has spoken with her to tell us the role of open data to get a more transparent judicial system.
What is the impact of data and new technologies in the legal sector? Why is it important to transform this sector?
Technology and data can and will transform the sector in many ways. On the one hand, technology and data impact on the legal framework. In effect, new technologies are demanding new regulations and also generating new business sources for lawyers who specialize and are able to advise on these topics.
On the other hand, technology allows jurists to better manage their work and their organizations. And nowadays, although later than other sectors, jurists know that they can be much more efficient if they use technology for certain tasks, especially those where data and its management are relevant: issues management; Customer Management; People Management; knowledge management; financial management and legal prediction. The impact of these technologies on legal professionals and their organizations is enormous.
Finally, there are legal services that can be offered through technology, improving its provision. For example, chatbots allow providing advice in a more efficient manner, and contract automation tools allow generate contract easily and without the need for professional support. These types of technologies will clearly impact the employment market.
The Institute of Legal Innovation seeks to help in the digital transformation of the sector through different projects. What is the role of open data in this transformation process?
I believe that the Institute of Legal Innovation has been one of the first private operators that has claimed the need for more open data. In the legal sector there is a series of data that are key to the development of more and better Legal Tech: judgments, resolutions and other information that result from legal procedures and that must be public. Many of the agencies that keep this information (CGPJ, CENDOJ, Registrars, Notaries, Ministry of Justice, Bar Associations, etc.) provide us with great reports and statistics, but not the data. In our opinion, that is the next step that must be taken to produce the real "Legal Tech Revolution", as I claimed during my speech in the Senate.
What is Legal Design Thinking? What advantages can it bring?
Legal Design Thinking is a methodology, based on Design Thinking. The origin of Design Thinking is located in the 50s in Stanford University in the US, but it is really in the 90s, hand in hand with David Kelley, when Design Thinking begins to be conceived as we know it today. In the 90s, also professors of this university began to investigate the applications of this methodology to the legal field. Parallel to this North American school, in Helsinki, several researchers of different specializations (legal, design, etc.) develop projects focused on the so-called Visual Design Thinking and its application to the legal sector.
This methodology helps to solve legal problems, understanding as such, those that refer to the functioning of the legal system or legal service providers, Legal Design Thinking (LDC). The word "problem" must be understood not in the traditional sense, as something negative, but in a broader one, as a challenge or situation that can be improved through creativity. This activity is the core idea on which Design Thinking is articulated. The other main point of the Design Thinking discipline is the client, the user, the recipient of the service, the contract, the rule, the sentence. In summary, Legal Design Thinking is a discipline that fits into the heuristic and whose main objective is the search for solutions to problems through creativity, always putting people at the center of the activity.
This discipline is very useful for many of the needs that law firms and other organizations in the legal sector have nowadays, such as the revision of their business models; the identification and development of new products or services; the understanding of customer journey to better meet customer needs or the operation of equipment.
One of the challenges to address the digital transformation of the legal sector is the lack of personnel with technological skills and knowledge, something that also happens in other sectors. What are the necessary capabilities and how can they be acquired?
Acquiring technological knowledge is not easy, but it is possible. There are already some complete works that analyse the Legal Tech in depth. In addition, there are numerous conferences, congresses, etc. where you can learn about the subject.
However, it is more complex to acquire the necessary skills such as project management; leadership; change management; time management; etc. The reasons are that, on the one hand, our sector has its own idiosyncrasy and requires customized training; but at the same time jurists are usually short on time and, consequently, many courses do not achieve sufficient capacity. So it is not always easy to find suitable training offer.
You also organize hackathons, such as #HackTheJustice (2017) and JustiApps (2014). Among other issues, the aim is to develop applications that help improve the efficiency and transparency of the sector. How has the reception of these events been? What are the challenges to access and reuse legal public data?
The reception of these events has been very good. In fact, they have received support from many relevant institutions such as the Ministry of Justice, the General Council of Notaries and companies such as Amazon, Banco Santander, Ilunión, Everis, Thomson Reuters, WKE, etc. In both editions we counted on a sufficient number of participants who also had very different profiles: lawyers, judges, students, etc. For all of them, working for a weekend with designers and developers of apps has been a unique experience that has changed their lives. Several of our participants have decided to turn, in part, their professional lives around after participating in our hackathons.
When we organize the first hackathon, we realized that there were almost no legal datasets and we made a round of calls to try to get them. The answers were not very positive. Since our first hackathon, there have not been major changes. So there is still room for work to continue asking the institutions to open the data they own.
What measures do you consider necessary to encourage the opening and reuse of legal open data?
The most important measure seems simple at first sight: all administrations that are responsible for data susceptible to becoming datasets should open them. Beginning with the Ministry of Justice and continuing through the CENDOJ or Registrars. All datasets should be inventoried, so that whoever wants to locate them does not have to spend days on their location.
To encourage reuse, perhaps a Legal Datathon could be organized once a year. Of course, hackathons and such activities also help and it would be great if some public institution wanted to organize them. In addition, the creation of Legal Tech incubators in professional colleges would support entrepreneurs who reuse this data. Finally, training in data, big data, transparency, etc. to law students and even professionals is perhaps the most necessary and practical measure that could be implemented.
The Legal Innovation Institute is also an incubator of Legal Tech projects. Based on your experience, how is the situation in Spain regarding innovation in the legal sector? Could you tell us about some of the projects you have in hand?
The situation is better in some aspects and worse in others. Spain has a clear advantage: the potential of the Spanish-speaking market. And several disadvantages: lack of enterprising spirit in technology among jurists; lack of institutional support; lack of training in the necessary skills and knowledge; etc. However, I am optimistic and I think that, in Spain,we are becoming aware that we are facing a sector with great potential. In the coming years, I think that we can become the cradle of many Legal Tech that will transform professionals, legal organizations and how many legal services are provided today.
One of the most relevant projects that we have in hand is the launch of the first Legal Tech comparator. It will be a very useful tool for any firm or professional who wants to know what technology is available in the market.
Noticia
La red europea LAPSI ha seleccionado el portal datos.gob.es entre la terna de finalistas de su Tercer Premio al portal sobre información del sector público más amigable de la Unión Europea.
El jurado del concurso estima, así, que el sitio web que gestiona el Catálogo de Información Pública de la Administración General del Estado reúne las mejores valoraciones respecto a los criterios básicos de la convocatoria: diseño atractivo, usabilidad y difusión de la reutilización de los datos públicos.
Entre los proyectos elegidos para la fase final figura, además del portal sueco InfoTorg, la iniciativa española CartoCiudad, que está auspiciada por el Instituto Geográfico Nacional y que integra datos de otras fuentes como la Dirección General del Catastro.
La presencia de dos finalistas del sector público español en el premio LAPSI pone de manifiesto, tal y como recoge el Portal de Administración Electrónica, el esfuerzo de nuestro país para poner a disposición de empresas y ciudadanos la información del sector público y para promover su reutilización.
La Comisión Europea ha valorado en unos 2.000 millones de euros el potencial económico del sector infomediario en España, con una cuota ya alcanzada de entre 550 y 650 millones de euros, según el Estudio publicado el pasado mes de junio por el Observatorio Nacional de las Telecomunicaciones y para la Sociedad de la Información (ONTSI) y por Proyecto Aporta.
La reciente aprobación del Real Decreto 1495/2011 y la apertura de la versión beta del portal datos.gob.es en el mes de octubre de 2011 permitirán seguir avanzando en la potenciación de este sector de la economía digital y en la construcción de una administración más abierta y transparente.
El mantenimiento del portal datos.gob.es está encomendando por el Real Decreto 1495/2011 a la Secretaría de Estado de Administración Pública y a la Secretaría de Estado de Telecomunicaciones y Sociedad de la Información, en colaboración con el resto de organismos del sector público estatal.