Data analytics Data analytics. Credit: Maksim Kabakou/Shutterstock.com

A French law that criminalizes the use of data analytics to assess and predict patterns in judges' court decisions has sent ripples through the global legal community. But the CEO of a leading French data analytics company believes the relevant section of the law, known as Article 33, is not long for this world.

“This article will be declared unconstitutional or parliament will enact a new law,” said Nicolas Bustamante, CEO of the French legal information platform Doctrine.

Article 33 of the Justice Reform Act, approved earlier this year, bans the use of data analytics for predictive analysis of judges' behavior. Violation of the law is punishable by up to five years in prison. It came about following intense lobbying by the French legal profession. And it has now become a front in a battle between the established legal profession and disruptors such as legal tech companies.

For Bustamante, there is little doubt that Article 33 is incompatible with the French Constitution and breaks EU laws governing access to public data.

Ironically, Article 33 was included in legislation known as the Justice Reform Act, which was written to create more transparency in the French judicial system. It was an effort to make all case law in France easily accessible to the general public.

In France, the public cannot easily access court data, Bustamante explained, and there is an urgent need for more openness and transparency in the law.

“Less than 5% of court decisions in France are available online. France is ranked 27th in Europe for accessibility of justice,” he noted, citing the European Commission's scorecard on access to information about justice.

At the same time, 88% of lawyers have difficulty accessing the information they need to build their cases, according to an opinion poll by the Institut Français d'Opinion Publique (IFOP), an international polling and market research firm.

But Article 33 came about as a compromise. Judges lobbied French lawmakers, stressing the need for privacy and fearing that the profiling of judges based on their previous decisions could result in unwelcome consequences.

Bustamante said his company has no plans to challenge the law directly. But he believes the issue of whether it is compatible with the French Constitution will be tested in the courts. There is also the possibility that a complaint will be lodged alleging infringement of EU law – in particular, the public sector information directive. Should that happen, the case will be brought before the European Court of Human Rights, he said.

“We always prefer conducting an open and constructive dialogue with public officials to resorting to litigation, but the issue of access to law and justice is too important to let these limitations multiply. We're currently examining different possibilities to challenge them, together with other stakeholders,” he said.

Bustamante, who attended the Haas School of Business at the University of California, Berkeley, said the problem stems from a lack of understanding of how the data is used.

“In France, you have many fears about the use of public data,” he said. “When you enter an oligopolistic market with innovation to provide more value to users, you have pushback.”

His Paris-based company, Doctrine, has had its own legal battles with legal publishers, and the French national bar association (Conseil National des Barreaux) brought a case against it several years ago, arguing that the company built its database in breach of data protection rules.

That has now been resolved, Bustamante said.

“I strongly believe that our tensions with the CNB and the Paris bar association take root in a misunderstanding of who we are and what we do,” he said. “We aim at making justice more accessible and transparent. We believe that anyone should have access to public information, including case law.”

Doctrine has spent a lot of time during the past two years explaining what it does – an effort that he says has been paying off.

“We have 15% growth month on month,” he said.

And Bustamante points to the company's commercial success as proof that it offers a valuable service to lawyers.

“This is a big market with room for companies offering different services,” he said. “Competition should always be seen as an innovation enhancer that benefits the end-user, not a threat to established incumbents.”