China's law experts' online judgement publication discussion: Part I

Leading legal scholars in China questioned slashing publication of judgements online and the supreme court's assertion of security and financial difficulties.

China Judgements Online (CJO), the world's most extensive and ambitious judicial transparency initiative, stands as a pivotal platform in China for accessing court judgements across all judicial levels.

However, according to Supreme People's Court's (SPC) Friday disclosure, the annual number of online judgements has decreased from 19.2 million cases in 2020, to 14.9 million cases in 2021, and further down to 10.4 million cases in 2022. From January 2023 until the present, there have only been 5.11 million judgements uploaded. Moreover, the SPC identified three major issues plaguing the CJO: website usability, privacy protection, and security risk.

The SPC's long overdue answer, which finally acknowledges slashing on the publication of judgements online, is unlikely to fully address the concerns within the Chinese academic community. These concerns have focused on the significant decrease in the number of judgments potentially violating Article 156 of the Civil Procedure Law of China, which explicitly states the public's right to access judicial documents, despite the highest court's defence on Friday that public access does not have to translate to convenient, internet-enabled browsing and searching.

These concerns were thoroughly discussed in a live-streamed event on November 26, hosted by 王涌 Wang Yong, Director of 洪范法律与经济研究所 Hongfan Legal and Economic Studies and law professor at China University of Political Science and Law. The event featured a presentation by Prof. 何海波 He Haibo, of Tsinghua University, followed by a panel discussion which also entailed Prof. 傅郁林 Fu Yulin from Peking University Law School and Prof. 吴宏耀 Wu Hongyao from China University of Political Science and Law.

Part I and Part II of Prof. He's presentation have already been published by Pekingnology. This newsletter will feature Part I of an excerpt from the panel discussion, marked by candid opinions spoken from experiences. I have omitted the more informal and colloquial parts of their conversation for conciseness, and added chapter titles for the convenience of readers.

— Jia Yuxuan

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What are the reasons for fewer judgements online, finance or security?

Director Wang Yong:

Thank you, Professor He. Your active participation, along with Professor Fu, in the deliberation process of the Chinese Judgements Online (CJO) at the Supreme People's Court (SPC) has endowed you with a comprehensive insight into its intricate aspects. Regarding the cost-benefit analysis of the initiative, the CJO's significance in enhancing judicial fairness, authority, credibility, and public trust is undeniably profound.

Now, shifting to the cost aspect, the primary technical concern is whether there has been an estimate of the annual expenses associated with publishing judgements, which number in the tens of millions annually in China. This process encompasses stages like text proofreading, sensitive information redaction, uploading, and management. Could you please shed light on the estimated annual financial expenditure for these operations?

The second question concerns the financial feasibility of the Supreme People's Court. Recent reports suggest that the Supreme People's Court is currently facing financial constraints to the extent that judges are unable to receive reimbursement for their travel expenses. Moreover, many courts are operating in rented premises, including several circuit courts, and the high annual rent poses a burden. Considering that the development of an efficient CJO system necessitates significant material and human resource investments, is the financial strain too great for the Supreme People's Court to manage?

Professor He Haibo:

Certainly, those within the court system may have a more precise understanding of these matters. However, I believe that the cost associated with uploading alone is not excessive, given that China's judgements are already digitized.

However, the revenue generated does present a tricky question for the court: should it charge people for utilizing these judgements? The CJO website initially prohibited commercial use, and initially, I shared the sentiment that judgements shouldn't be sold. However, upon further reflection, I believe that providing the data for a specified cost under establish transparent and equitable rules could be acceptable.

Adopting a method with transparent and well-defined pricing is more equitable than acquiring data through nepotism. Additionally, it provides the court with a revenue stream and enhances control over the dissemination of judgements. For instance, in cases where a judgement is removed or requires corrections, a structured system would allow for efficient notification of updates or revisions to the recipients. This approach is preferable to the unregulated use of web crawlers, which can pose challenges to the SPC's internal internet infrastructure. The use of court data by commercial entities, in compliance with established rules and through financial contribution, aligns with the core principles governing public data access.

Recognizing the costs involved in creating and maintaining a website is also crucial. This responsibility could either remain with the government or be transferred to societal organizations. In the specific case of the CJO, it is important to consider the operational costs and investment required, exploring the potential for non-governmental management to contribute to its sustainability and efficiency.

The absence of explicit guidelines places considerable pressure on court leadership, leading to hesitancy in initiating actions concerning public data management. From a legal perspective, public data, if regarded as a form of property, fundamentally belongs to the populace. The primary challenge is practical rather than theoretical: how do we effectively manage this property? Especially, if some data is allowed to enter the public market for trading, how can we effectively control the use of this data?

Professor Fu Yulin:

I think initially, the SPC was not concerned with economic or political risks but rather focused on the potential misuse or misinterpretation of information.Their primary concern has always revolved around the usage of information, because the responsibility is divided: the government handles disclosure, while others manage usage.

The current discussion, though, has shifted to the cost of disclosure. Naturally, when you disclose information, it's not done haphazardly; it requires organization and maintenance according to certain criteria, hence the associated cost. However, this cost can be fully covered by the benefits of public disclosure itself, as mentioned earlier by Prof. He. Making case information publicly accessible reduces research costs for courts in similar cases and diminishes the likelihood of subsequent legal disputes, thereby minimizing the "shadow" areas where the law has insufficient reach and effectiveness. Of course, you could argue that these are indirect benefits, and I can not provide a concrete answer.

Secondly, the investment in CJO hardware and its subsequent maintenance is already very substantial. It would be so disheartening if the existing infrastructure is not utilized, leading to an immeasurable waste of resources. The SPC, in its efforts to promote the smart court system, has made massive investments in the early stages. I don't know the exact amount, but the investments by various levels of courts and particularly by the SPC are enormous. Now, the drop in numer of uploaded judgements raises questions about cost-effectiveness. While there are savings in future upgrades and maintenance are considerations, in addition to labor costs, particularly in the manpower required for online uploads, these must be weighed against the original investment in hardware.

Furthermore, in discussions about the recent policy shifts at the SPC, nobody, including their internal staff, has cited funding as a reason. The primary reason now being cited is the issue of information security, which I will now address. From the perspective of maximizing the social benefits, and considering the substantial investment already made, adopting a corporate-style operation for managing judgements could be a viable approach. The key to this strategy lies in allowing controlled access to information. Once accessible, a wide range of researchers could effectively utilize this data for societal good. Companies might be established specifically for this purpose. Even if they initially operate as businesses, their activities could still contribute to the greater social good.

The focus should be on ensuring the correct use of information. As long as the information is not misused or distorted and is used accurately, its dissemination could be immensely beneficial.

I believe in the field of civil law, there definitely exists a significant amount of public information that is already in the public domain and does not involve state secrets. If the information itself is not classified and the CJO's function is merely to present matters through big data analysis, then how can China now decide to obscure access to the whole lot of information on these grounds?

Reducing the number of judgements online is an infringement on legitimate rights

Professor Fu Yulin:

Article 156 of the Civil Procedure Law of China [in the 2012 and 2017 amendment, Article 159 in the 2021 and 2023 amendment] stipulates that,

"公众可以查阅发生法律效力的判决书、裁定书，但涉及国家秘密、商业秘密和个人隐私的内容除外。The public may consult effective written judgements and rulings, except content involving any national secret, trade secret or individual privacy."

It explicitly states the right of the public to access judicial documents. This was clearly incorporated into law in 2012. The Legislative Affairs Committee of the National People's Congress (NPC) has consistently advocated for three key reforms since the 1990s, despite facing various challenges: 1) the publicization of the judiciary, 2) professionalization of the judiciary, and 3) facilitation of the standing and rights of litigants in legal proceedings. These have been the three major directions of the Civil Procedure Law reform in China, and there has never been any regression from these commitments.

Director Wang Yong:

This article can be interpreted to mean that even if the public has no relation to a case, they can still inquire about its judgements at the people's court.

Professor Fu Yulin:

Yes. And this right extends not just to judgements but also to the case files.

Director Wang Yong:

Did China have the supporting infrastructure for this [when the article was incorporated in 2012]?

Professor Fu Yulin:

No, it didn't. But the later shift to digitalization enabled China to facilitate this access.

Director Wang Yong:

But now it has scaled back.

Professor Fu Yulin:

The direct beneficiary of online publication of judgements is society, while the victims—no, not victims—the direct affected parties, are specific groups of people. For instance, as Prof. He analyzed, the authors of the judgements face increased burdens—the pressure of one's flaws being magnified. However, court officials are gradually getting used to this, as no one can ensure their writing is flawless. The main issue is workload. With the increasing number of cases, judges are already overwhelmed. When the system was functioning well, the workload was managed by pushing down from the top as an evaluation metric. So now, even if there no more assessments, the system itself will shrink.

The current changes as mentioned by Prof. He, carry a significant signaling effect. The move away from practices established in the pursuit of judicial transparency conveys a potent message. The consequences and challenges posed by these changes are immediate and tangible.

My view is, it's imperative to improve rather than revoke. I am more than willing to continue participating in such improvements, even if it involves partial withdrawal. For instance, cases involving marriage and family matters, which have significant privacy concerns, could be wholly withdrawn if the screening workload is too great. But commercial cases are too crucial in establishing societal credit to be dismissed lightly. The issue fundamentally relates to mutual trust among individuals. Previously, searching through such archives was costly and time-consuming. However, digitization has transformed this landscape. By making these judgements digitally available, a sense of security within the credit system is enhanced. Individuals can more easily access information about each other, adding a layer of safety to transactions and interactions. This accessibility, in turn, fosters greater trust. In this sense, even services like Qichacha Tec and others that operate in a legal grey area are tolerated by society to a considerable extent due to their utility.

Director Wang Yong:

If the withdrawal of online judgements continues, scholars and researchers, in particular, will be faced with grave challenges. If we, as scholars, approach a specific court, like the Beijing High People's Court, requesting access to their past commercial judgements related to corporate law, the lack of procedural guarantees becomes a major hurdle. Our request will fall on deaf ears, contrasting sharply with the Open Government Regulations, which provides a legal framework for requests and responses.

Honestly, I don't even know which department to send the request to. I can only submit a general request for all the corporate judgements in the past 12 months, and it will most likely be dismissed or ignored by the SPC on grounds of being unclear or too general.

From our previous discussions, it seems that there might be a severe macro-level and political regression. A pertinent issue is the impact of public disclosure of judgements on national data security. Is there a risk that such disclosures pose a major challenge to national data security? Can it be that someone wrote an internal report saying that the current state of the CJO contradicts the Communist Party of China's (CPC) strategies for safeguarding national and data security, necessitating a pullback?

Theoretically, I don't think the information disclosed in judgements should equate to the sensitive data referred to by the CPC. There might be exceptions. like if you infer from a judgement involving military facilities. For instance, a publicly accessible judgement involving military facilities, like a case where a farmer uncovers a military cable, could inadvertently reveal to a spy some information regarding confidential military operations. Is this how foreign spies obtain China's military secrets?

Professor He Haibo:

I confess I don't know much about this, but it's clear that national security concerns are real and cannot be overlooked. However, it's equally important to avoid overstating these concerns to the point where all information becomes national security issues and all information is heavily sealed off. Just look at the DPRK, which is perhaps the most longstanding case of a nation sealing itself off. The damage of such an approach to its national image is enormous.

Director Wang Yong:

Even if certain cases do implicate national security, China's existing regulations for the online publication of judgements are still quite explicit. In instances involving state secrets, the standard procedure is to redact sensitive information, not to abandon or reverse a significant reform under a nebulous pretext. That would be ridiculous. Therefore, justifying the complete cessation of online judgement publications with national security concerns is logically unsound.

Of course, as scholars, it is incumbent upon us to delve deeper into this issue. Someone should write an article detailing the nature of information in these judgements, its ownership, and how it intersects with national data security. Scholars must speak out at this critical juncture to dispel prevalent misunderstandings among the public and some leading officials. This has to be done.

Professor Fu Yulin:

The Xuzhou chained woman incident is a prime example [of the interactions between societal impact and judicial transparency]. Previously, when a case gained widespread attention, its judgement would be subject to public scrutiny, but it did not significantly influence the courts' sense of self-protection.

However, following that high-profile case, there was a notable shift. The public began to examine other judgements, uncovering a prevalent issue of marriage trafficking in the region. Subsequent case and statistical analyses conducted by the public also had a profoundly positive social impact.

Nevertheless, the courts quickly removed these judgements from public access, especially those related to marriage and divorce cases.

The fact is, the court's image might not necessarily have been tarnished, though his definitely impacted the courts, local governments, and even the Central Political and Legal Affairs Commission (CPLC). The point is, the online judgements provided an essential channel for society to identify issues—that is, if you want to expose them. But if someone doesn't want to expose them, it is just the signal to indicate whose interests are at stake, who benefits, and who is harmed by publishing judgements online. This is a political question.

Professor He Haibo:

So, if we were address this issue politically, President Xi Jinping said "We will see that the people feel the sunshine of justice in each and every judicial case." If online judgements were withdrawn, the sunshine is gone; how can people feel it? Without the availability of these judgements, the public loses a direct experience of this "sunshine of justice," which is completely at odds with the central spirit.

[the real quote from President Xi is actually "让人民群众在每一个司法案件中感受到公平正义 We will see that the people feel justice has been served in each and every judicial case." But there is also a frequent phrase used by China's state media to "让公平正义的阳光照进人民心田 let the sunshine of justice shine through to the hearts of the people."]

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Tsinghua law professors call for renewing open access to China's court judgments

He Haibo says China's online publication of judgments must NOT regress