Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication

31 Pages Posted: 22 Sep 2016 Last revised: 7 Oct 2016

See all articles by Jane Bailey

Jane Bailey

University of Ottawa - Common Law Section

Jacquelyn Burkell

Faculty of Information and Media Studies

Date Written: September 20, 2016

Abstract

The meaning of and purpose behind the open court principle have expanded and shifted over time. Currently in Canada the adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witnesses. Historically, notwithstanding this presumptive access, practical obscurity has protected much of this information, in that most people will not trouble themselves to physically attend court offices in order to review records filed there. However, continuing a policy of presumptive access could have devastating effects on privacy as court records move online. Unfettered online access removes the inconveniences and personal accountability associated with gaining physical access to paper records, thereby opening up sensitive personal information to the voyeuristic gaze of the public. We take the position that in this context, presumptive accessibility jeopardizes the fundamental human right to privacy without substantially contributing to the underlying values of the open court principle: transparency and access to justice. As such, we argue that mechanisms to reintroduce friction into the process of gaining access to personal information ought to be taken to rebalance the public interest in open courts with the public interest in the protection of privacy.

Keywords: Privacy, Open Courts, Online Court Records

JEL Classification: K40, O33

Suggested Citation

Bailey, Jane and Burkell, Jacquelyn, Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication (September 20, 2016). Ottawa Faculty of Law Working Paper No. 2016-31. Available at SSRN: https://ssrn.com/abstract=2841432 or http://dx.doi.org/10.2139/ssrn.2841432

Jane Bailey (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 ext. 2364 (Phone)
613-562-5124 (Fax)

Jacquelyn Burkell

Faculty of Information and Media Studies ( email )

FIMS and Nursing Building, Rm. 2050
London, Ontario N6A 5B9
Canada
5q9-661-2111 ext 88506 (Phone)

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