November 2, 2008 by Kathryn Yardley
In August Canadian Privacy Commissioner Jennifer Stoddart spoke about the growing concerns surrounding the online publication of federal tribunal decisions containing the personal information of individuals. Tribunals routinely publish the full text of their decisions online. Stoddart’s comments are part of a growing debate that pits the long standing “open court” rule against the rights of individuals to privacy. The concern is that because decisions are readily and widely available on the internet there is greater potential for misuse of information, including identity theft, commercial gain, discrimination and general infringement of privacy rights. Stoddart expressed particular concern over the publication of names, addresses, SIN numbers and undefined “intimate personal details”; she gave the examples of medical details and more ambiguously “information about a family member.” Stoddart suggested substituting initials for names and removing certain information from decisions.
The collection and use of personal information falls under federal privacy legislation, however, the issues raised by this discussion are reminiscent of the ongoing struggle between intellectual property (IP) rights holders and users. Though individuals have no obvious right to protect personal information such as names, addresses and personal details through copyright, personal information can be compared to quasi-intellectual property when that information is governed by a statutory right to privacy. It becomes a matter of determining what uses should or should not qualify as exceptions to that protection. In dealing with both personal information and IP there is a similar need to strike a balance between providing public access to useful information and affording those with claims to the information or material the ability to control how it is used.
One criterion that should be looked at in making a determination about the use of personal information in tribunal decisions is the “public interest”, a commonly cited policy objective for IP. The publication of decisions is an important public service. Decisions outline the position of the tribunals on given matters and can be accessed by legal professionals, business people and ordinary citizens to influence their decision making on related matters. Because tribunals are not bound by precedent it may be easier to argue that small details can be left out without robbing the decision of its information value, whereas in court cases, where stare decisis applies, factual minutia can be critical in determining the applicability of a precedent. Any proposal to interrupt the free flow of information, however, has the potential to cause uproar. The Commissioner will need to clearly frame the issues, precisely defining problematic “intimate personal details.” It goes without saying that SIN numbers and addresses can and should be blacked out from published decisions, but it is less clear what other details should qualify for exemption. The practice of ‘cleaning up’ decisions could quickly become difficult and dangerous. There is a risk that obscuring details would not only devalue the decisions as information tools, but that it would make the decision making process less transparent.
 Jennifer Stoddart, Privacy Commissioner of Canada, “Setting the “Bar” on Privacy Protection” (speech given to the Canadian Bar Association, Quebec City, 17 August 2008) online: <http://www.privcom.gc.ca/speech/2008/sp-d_080817_e.asp>
 Kirk Makin, “Online tribunal evidence leaves citizens’ data open to abuse” The Globe and Mail (20 August 2008) online: <http://www.theglobeandmail.com/servlet/Page/document/v5/content/subscribe?user_URL=http://www.theglobeandmail.com%2Fservlet%2Fstory%2FLAC.20080820.PRIVACY20%2FTPStory%2FNational&ord=91676256&brand=theglobeandmail&force_login=true>