November 2, 2008 by Anthony Garber
In a recent speech made at The CBA Canadian Legal Conference Expo, the Canadian privacy commissioner, Jennifer Stoddart, weighed in on the novel privacy concerns arising from advances in information technology. Of central concern in her speech is the widespread dissemination of personal information through online publication of judicial decisions. In some instances the names, addresses, medical histories and SIN numbers of litigating parties are made available to anybody with an internet connection.1
Publication of judicial decisions is protected under the “open-court” rule, a doctrine that enshrines a general right of access to courts and court proceedings. In Canadian law there is a presumption in favour of public access to court records. However, the courts have a supervisory and protective role over court documents and may impose a block on access. As a rule, the person seeking to deny access has the difficult onus of proving that disclosure of court documents would subvert the ends of justice or that “judicial documents might be used for an improper purpose.” 2 The personal sensibilities of the parties involved are not a ground for denying access.
The access/privacy debate has escalated as court records become increasingly available online. In the past some semblance of privacy remained due to the “practical obscurity” of court records since only legal professionals could readily obtain them. As the difficulty in obtaining records erodes, courts have become increasingly sensitive to privacy concerns. The concept of “practical obscurity” developed from a series of US cases dealing with online criminal records.3 It was adopted in a Canadian case were compiling and posting criminal dockets online was held to infringe the right to privacy.4
Many competing interests are at stake in the access/privacy debate. On one hand, access to court records ensures that citizens are informed and educated in the law. The open court rule is integral to the administration of justice in that it cultivates transparency and accountability within the courts. Furthermore, the stigma created by publicly disclosed court proceedings can serve as an important deterrent to criminal or negligent behaviour.
On the other hand, the open-court rule may jeopardize a person’s reputation, business or employment, and may leave them open to identity theft or other improper uses. While it can be argued that parties resorting to the justice system have consented to having their disputes heard in public forum, it is also true that most parties are given no choice in the matter (for example defendants in both civil and criminal trials). For these parties, potentially embarrassing or damaging information must be made public.
As the internet detracts from the “practical obscurity” of court documents, there must be a careful rebalancing of the competing interests. The presumption in favour of public access undeniably serves the public interest. But one may justify relaxing the burden on those seeking to shield their personal information when that information is not essential to the reasoning of the court. The privacy commission is set to release their recommendations on this matter this fall.
1 Jennifer Stoddart, “Setting the Bar on Privacy Protection” (Remarks for the Canadian Bar Association (CBA) Canadian Legal Conference and Expo, 17 August 2008), online: Office of the Privacy commissioner of Canada < http://www.privcom.gc.ca/speech/2008/sp-d_080817_e.asp >
2 MacIntyre v. A.G.N.S.,  1 S.C.R. 175 at 183-189.
3 Westbrook v. Los Angeles County. See also United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 109 S.Ct. 1468.
4 Alberta v. Krushell,  7 W.W.R. 174