A French law that criminalises the use of data analytics to assess and predict patterns in judges' court decisions has baffled much of the legal world and the growing data analytics industry.

The new law, which was passed in March but stayed under the radar until this month, states that "the identity data of magistrates and members of the judiciary cannot be reused with the purpose or effect of evaluating, analysing, comparing or predicting their actual or alleged professional practices".

Those who violate the law face a sentence of up to five years in prison.

While such a law appears to impinge upon transparency and could have a huge impact on the burgeoning legal data analytics companies, the legislation was actually written as part of a move to create more transparency in the French judicial system – an effort to make all case law in France easily accessible to the general public.

"Article 33 was mainly dedicated to open data, for the population to have easy access to court decisions," said Frédéric Lalance, head of the Paris office of Orrick, Herrington & Sutcliffe.

Known as Article 33 of the Justice Reform Act, the law was the result of a compromise between French lawmakers and pressure from judges, who emphasised the importance of privacy and feared that the profiling of judges based on their previous decisions could result in unwelcome consequences.

Lalance said they worried that personal information, including data showing patterns in their decisions, could be used against them – that the profiling of judges could result either in pressure on them or could encourage forum shopping.

Merav Griguer, a Paris-based partner with Bird & Bird, said the Union Syndicale des Magistrats, France's largest magistrates trade union, was "clearly against such open data", and its members expressed their concern to French lawmakers.

"They argued [such data collection and processing] is incompatible with independence and impartiality of judges," Griguer said.

In response, lawmakers included the provision to remove any references to judges' identities from publicly available court data.

The law's limitations

The negative reaction to the law by attorneys and analytics companies has been overblown, some French lawyers say. Orrick's Lalance, for example, said it will not stop predictive analysis.

"You could have predictive analysis of a certain court or district or region, but it should not be based on the identity of persons rendering the decision," he said. "For example, the Paris Commercial Court has a special chamber dealing with bankruptcy. It is possible to proceed with predictive analysis based on all decisions rendered by that chamber but without selecting the name of a specific judge."

Bird & Bird's Griguer said the law fails to accomplish what it set out to do on either the privacy front or in preventing the use of data analytics. 

"The law is not efficient, as it cannot technically prevent reidentification of judges and cannot prevent abuses by the reuse of such personal information," she said. "We already have GDPR, which is enough and more efficient to protect privacy."

The EU's General Data Protection Regulation seeks to guarantee digital privacy for all citizens of the European Union. Griguer said the publication of judges' personal information is subject to the GDPR and the abusive reuse of such information is already forbidden.

Under GDPR, for example, the reuse of data could violate the principle of "minimisation of data", which states that the collection and processing of data should be limited to what is necessary and adequate for the stated purpose.  

Moreover, she said it is still easy to identify judges associated with a decision by combining other information, such as the location, nature and date of the trial.

"I think this law was unnecessary," she said,

And Griguer added that she does not think the law will kill off the market for legal data analytics, because the restrictions could be worked around relatively easily by tweaking algorithms.

Besides, she said, lawyers and law firms in France already have a font of information about judges.

Still, Griguer warned that data analytics firms will have to be careful when marketing their products to lawyers in France.

They cannot, for example, say, "we can show you how a judge will decide", she said.

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