China's highest court defends restricting online publication of effective judgments, its once proud transparency initiative
The Supreme People's Court now claims "public disclosure" and "publication" are not synonymous & judicial transparency doesn't imply that all judicial information must be posted on the Internet.
Amid widespread concerns for shrinking judicial transparency and defying leading legal scholars’ public advocacy, China’s Supreme People’s Court (SPC) released a self-Q&A on Friday (Dec. 22, 2023) defending its significant restriction on the online publication of effective court judgments across the nation, claiming that China Judgments Online, a once ambitious judicial transparency project that the top court once prided on only a few years ago, has seen several issues that need to be addressed.
China Judgments Online, an official website enabling browsing and searching, at its peak in 2020 published 19.2 million effective judgments from across Chinese courts, ushering in unprecedented judicial transparency.
The SPC on Friday identified what it says are three issues with its once daring project: website usability, privacy protection, and security risk. It claims that China Judgments Online, which the SPC operates, was unfriendly in use, that court judgments involve too much private information, and that third-party crawling of a vast number of court judgments could pose risks.
The SPC, while claiming its “efforts to advance sunshine justice” will continue, admits on Friday that the number of published judgments dived to 14.9 million in 2021, to 10.4 million in 2022, and now further to 5.11 million in 2023, as a result of its “optimizing” since July 2021.
[Credit: Professor He Haibo of Tsinghua University]
In a significant contrast with its stance from just a few years ago, the SPC now claims that "public disclosure" of judgments, which is required by Chinese law, and online "publication" of judgments are not synonymous and that judicial transparency does not imply that all judicial information must be posted on the Internet.
“Civil and administrative litigation laws specify that the public can access effective court judgments, but they do not require that these documents be published on a single online platform,” the SPC says, “globally, the vast majority of countries only publish court documents on the official websites of their respective courts, and many countries' document databases are primarily operated by commercial companies.”
The general public should expect fewer effective court judgments available on China Judgments Online, as the SPC now formally defends its “optimization”.
At the same time, the SPC is building an internal access-only database of all effective court judgments, promising to study them - now away from public eye - carefully for “formulating judicial policies, advancing judicial reforms, and providing judicial suggestions.”
The following is an abridged translation of the SPC’s self-Q&A
Question: We notice that the number of documents on China Judgments Online has significantly decreased in recent years. Does this indicate a shift in the direction of judicial openness by the Supreme People's Court?
Answer: Since its establishment in 2013, China Judgments Online has played an important and positive role in promoting an open, dynamic, transparent, and convenient judicial mechanism. However, over the past decade, as the number of documents and public attention on China Judgments Online increased and big data analysis technology rapidly developed, its shortcomings have been frequently criticized, mainly in three aspects:
First, usability issues. Specifically, it’s inconvenient to search. Although there are over a billion documents online, they are simply accumulated without keywords or summaries, making precise searching difficult. The standards are not uniform. Frontline judges report that documents from over 3,500 courts nationwide vary in their application of the law to similar legal issues, making it hard to find needed cases. Even if similar cases are found, the lack of uniform rules and standards leads to confusion and inability to reference. The authority is insufficient. Some lawyers complain that online documents lack official authoritative recognition, and search reports and legal opinions formed based on them are not acknowledged by courts at different levels and regions, often resulting in much effort for little actual effect.
Second, issues with rights protection. In many foreign countries, online documents mainly come from appellate courts or supreme courts, focusing more on legal interpretation and analysis. In China, a large number of documents from lower courts involving summary procedures or minor disputes carry limited rule significance and various factual and identity information. Some labor dispute litigants have been repeatedly rejected in job applications due to related documents being published online. Some individuals have experienced family discord and marital strife due to pre-marital information disclosed in online documents. Some private enterprises have faced difficulties in financing, loans, business cooperation, and participating in bidding due to the public disclosure of litigation information. Therefore, complaints are often raised by parties, including companies and businesses.
Third, security risk issues. When China Judgments Online was established, big data "crawling" and analysis technology were not widespread. After a massive number of documents were published online, carrying a wealth of national and social information, it gradually became a focus of attention as an information resource. Some commercial companies have transformed "crawled" document data into legal search, corporate credit, and AI "products" for profit, but have not managed them according to safety, compliance, and controllable requirements. Some "black and gray industries" even engage in extortion, information trafficking, and traffic scraping based on this data.
In response to these issues, since July 2021, the Supreme People's Court has taken targeted rectification measures according to feedback, demands, and suggestions from various parties. Through strict risk screening and improved publication standards, the annual number of documents published online decreased from 19.2 million in 2020 to 14.9 million in 2021, and further to 10.4 million in 2022. From January to now in 2023, the number of online documents is 5.11 million.
It can be said that since 2021, the work of optimizing the publication mechanism of judicial documents has been ongoing in an orderly manner, but the publication of documents online has never been "halted." As previously mentioned, to specifically address the issues of inconvenience, inaccurate search, and non-uniform standards on China Judgments Online, the Supreme People's Court decided in July 2023 to establish the 人民法院案例库 "People's Court Example Cases Database." Compared to the previous practice of simply uploading and accumulating documents on China Judgments Online, the case database will include authoritative cases with reference value for similar cases, which are reviewed and approved by the Supreme People's Court, and will become an "upgraded version" of China Judgments Online in application and effectiveness. The two are complementary and mutually beneficial, not intended to replace one with the other. It should be emphasized that "public disclosure" and "publication" are not equivalent. Judicial openness does not mean that all judicial information must be published on the Internet. According to the constitution and law, court trials are open to the public by law, and the delivery of judicial documents
It is important to emphasize that "public disclosure" and "publication" are not synonymous; judicial transparency does not imply that all judicial information must be posted on the Internet. According to the constitution and laws, court trials are conducted openly as per the law, and the delivery of judgment documents to the parties involved is in itself a practice of the principle of open justice. Judicial transparency includes both online and offline disclosure; it encompasses disclosure to the parties involved as well as to the general public. Different forms and targets of disclosure are subject to various legal requirements. Especially after the enactment of the Civil Code, Personal Information Protection Law, and Data Security Law, new and higher standards have been set for judicial openness. The work of judicial transparency in people's courts needs to evolve and improve with time. The key is to implement constitutional and legal provisions, adhering to a people-centered development philosophy, fully satisfying the parties' right to participate and be informed, facilitating the public and all sectors of society in understanding and supervising, while effectively safeguarding rights and controlling risks, preventing adverse impacts on citizens' legitimate rights and interests, business operations of enterprises, and public interests due to inappropriate disclosure.
In summary, the people's courts will continue their efforts to advance judicial transparency, providing more high-quality and efficient judicial services!
Question: What are the considerations behind establishing a national database of court judgments in addition to China Judgments Online? What is the function of this database?
Answer: Litigation is often referred to as the "barometer" of economic and social development. The vast amount of data from court judgments not only serves as an essential basis for analyzing the status of judicial execution work but also as an important reference for assessing the economic and social development situation. To specifically strengthen judicial management, assist in judicial decision-making, and serve national and social governance, the Supreme People's Court decided to establish a national database of court judgments, gathering various types of judgments within the specialized network of the four-tier courts.
Due to the lack of keywords and judgment summaries, the problems of inconvenient queries and searches in China's Judgments Online also exist in the national database of court judgments. Therefore, the primary purpose of the judgment database is not to provide case queries for judges but to focus on the analysis and application of judicial big data in national and social governance. It serves as a basis and reference for formulating judicial policies, advancing judicial reforms, and providing judicial suggestions. For example, by analyzing the national courts' dismissal of cases, upholding original verdicts, or ordering retrials, we can promptly identify and specifically address the issue of "procedural idling." By examining specific mass litigation cases, we can discover and effectively manage problems like false lawsuits, "patent extortion," or "predatory rights protection." By analyzing the relationship between successful cases represented by lawyers and specific courts or judges, we can study and assess clues in judicial integrity. By analyzing the abnormal rise and fall in the number of related cases over a period, we can make targeted judicial suggestions to relevant departments and industries for improved management and governance.
Question: Will the Supreme People's Court and local people's courts continue to publicly disclose court judgments online? What are the next steps?
Answer: The publicly accessible China Judgments Online will continue to play its role. Simultaneously, the standards and mechanisms for uploading judgments need optimization and standardization, and related work will be advanced by the principles of strict legality, prudent appropriateness, and legal supervision.
First, adhere to the strict principle of legality. Civil and administrative litigation laws specify that the public can access effective court judgments, but they do not require that these documents be published on a single online platform. Globally, the vast majority of countries only publish court documents on the official websites of their respective courts, and many countries' document databases are primarily operated by commercial companies. Next, we will combine online publication with offline queries, strictly implementing legal provisions and fully guaranteeing the public's right to access effective documents.
Second, adhere to the principle of prudent appropriateness. Many parties, including citizens and enterprises, have raised concerns about the impact of publishing their case-related judgments on individuals, families, and business operations, requesting consent for internet publication. We need to consider these demands comprehensively and balance the interests of all parties. People's courts at all levels will continue to regularly publish judgments on China Judgments Online, while more cautiously balancing the public's right to know and supervise with the protection of data, information security, and personal privacy. This approach will fully utilize good cases and documents to promote the spirit of the socialist rule of law, cultivate citizens' legal awareness, serve high-quality development and high-level security, and advance the modernization of national and social governance.
Third, adhere to the principle of legal supervision. We will strengthen supervision, conduct talks with commercial organizations misusing judgment data, guide and urge them to use data legally and compliantly, and collaborate with relevant departments to legally sanction illegal activities that exploit document data to harm national security, judicial authority, infringe upon the legal rights of citizens and enterprises, or disrupt market order. This effort will promote a safer, more orderly, and standardized operation of China Judgments Online.