Yesterday and today, almost two years since we filed suit against the Quebec company register, OpenCorporates has been appearing in the Montreal Superior Court – to ask the court to rule that we may continue to make the Quebec company register data available to all. This is an important milestone for OpenCorporates, as it’s the first time we’ve taken a register to court (although it probably won’t be the last).
Just how important this is was underlined by the stories published less than two weeks ago, on the Troika Laundromat, in which OpenCorporates data was an important element. Indeed the Globe & Mail’s story on money laundering using Canadian companies actually depended on the very data that the Quebec registry wants to restrict access to.
As the reporter behind those stories, Mark MacKinnon, says:
“The OpenCorporates database was crucial in revealing patterns that helped me – and readers of The Globe and Mail – see how addresses in Canada, and specifically in Quebec, were being used in an apparent money laundering operation known as the Troika Laundromat.
Given that the shell companies involved were using Canadian and Quebecois addresses to try and add a sheen of legitimacy to their operation, I believe it’s of clear public interest to have such information in an easily searchable database, such as the one OpenCorporates maintains.”
In the spirit of transparency, we’re going to be making all our submissions in court public, including our arguments, the exhibits, and the depositions we took from the Quebec register. We think they will make interesting reading. (Note that there are two exhibits which are sealed, i.e. confidential, and we can’t make public – the list of government enterprises that have been given access to the Quebec register, and the “agreement” between the Quebec register and the Canadian Federal government to give access to the Canadian government to their data — more on this later in this post.)
What’s the case about?
It’s important to stress what this case is about, and what it’s not. OpenCorporates has applied to the court for a Declaratory Judgement – that is a ruling on a point of law. And the question is simply this – is there anything in the Act Respecting the Legal Publicity of Enterprises that prevents OpenCorporates from publishing and distributing the data provided and collected under the Quebec Enterprise Registry prior to the March 2016 terms and conditions, including for commercial purposes? The register claimed that it was simply following the strict letter of the law – and for example was super careful about even which government agencies had access to the data, and under what conditions.
Note: we’re not asking if it’s OK to scrape the register, or whether there are any other impediments (for example the register’s terms and conditions) to doing so, just whether the Act prevents us from doing so – as that is what the Quebec Register claimed when they asked us to remove the Quebec data from OpenCorporates.
What happened at the hearing?
The hearing itself lasted a day and a half: yesterday, with evidence from witnesses, including OpenCorporates’ CEO, Chris Taggart, pleading by OpenCorporates’ lawyer, Alexandre Forest, from leading international law firm Gowling WLG; and today, with the pleading of the Registrar’s lawyer, and a rebuttal by Alexandre Forest.
What was fascinating – apart from the general mechanics of the legal process – was what the hearing surfaced. The register appeared not to have any consistent position, for example, about the so-called “open data”* file of the companies it published. Would downloading that data and making it available to people be also in breach of the act (we believe it would be)? How many people had downloaded that data, and was the register monitoring this to ensure they complied with the Act too (A: they didn’t have the numbers, and no there was no monitoring)? On what basis did they make decisions about what information was allowed to be in that open data and what could be done with it? Under cross-examination, the witness for the register couldn’t state on what legal basis the open data was published.
In addition, in her final pleadings, the Registrar’s attorney mentioned that the Registrar was in fact worried about the publication and distribution of the data, but not with the constitution of a registry with the same data, but which would be kept private. Finally, the Registrar’s attorney confirmed on record that, should the data have been obtained from a different source than the Quebec registry, it would have had no objection to OpenCorporates’ public database.
Most interesting of all was that the Register witness testified that, for all its protestations that it strictly followed the law, and only shared data with even government entities under strictly limited circumstances, in September 2018 they gave the Federal government part of or a complete copy of the Quebec register (the witness could not confirm) for it to be published in its combined company database, without any agreement in place. In fact, the witness gave testimony that even now the agreement (which was not allowed to be made public) still hadn’t been signed, and placed no restrictions about what data could be published. This was particularly significant given that only the very basic information about the companies was supposed to be published on the site.
So it appeared, to a lay person at least, that far from simply and strictly following the law (and that was why the register couldn’t let OpenCorporates hold the data and make it available to journalists and others), its following of the law and decisions was arbitrary. Rather it was focused on maintaining its monopoly on the data, even though the world is moving to open company data, and even though it would prevent such important investigations as the Globe and Mail’s, or La Presse before it.
What happens next?
Judgment will take up to six months. In the meantime we will continue to hold the data and make available to journalists.
If we win, it will be a significant milestone in the fight for open company data. As the Troika Laundromat (and many other stories) shows, it’s important that this information can be held by OpenCorporates… and indeed by many others.
If we lose, it will show just how problematic the existing laws are – providing a fertile environment for money laundering, for corruption and cronyism, and for organised crime.
* The “open data” file the register publishes is under has a non-commercial restriction, and thus is not compliant with the definition of open data, either by the open data community, or the G8 open data charter.
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