Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties' and Witnesses' Personal Information
42 Pages Posted: 28 Apr 2017
Date Written: April 27, 2017
Openness of courts can serve laudable purposes, not the least of which are transparency of government and court systems and access to justice, although accounts of the open court principle’s meaning, breadth, and underlying purposes 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, encompassing not only information contained in court judgments, but also information contained in documents filed in court offices. 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. While the practical obscurity generated by having to physically access court records made it difficult for the public to interact with and understand the law and legal outcomes by, for example, imposing a barrier to public access to court judgments, it also protected privacy by minimizing the likelihood of widespread public inspection of personal information about witnesses and litigants.
Moving court records online makes those records more easily accessible and thereby undermines practical obscurity. This change offers the benefit of improving public access to law and legal reasoning, but in the online context, maintaining a default in favour of presumptive access could also have devastating effects on privacy. Unfettered online access removes the inconveniences and personal accountability associated with gaining physical access to paper records, not only opening up public access to court judgments, but also opening up sensitive personal information to the voyeuristic gaze of the public. We take the position that in this context, presumptive access to personal information about parties and witnesses jeopardizes the fundamental human right to privacy without substantially contributing to the underlying values of the open court principle: transparency and access to justice. Ultimately, we suggest 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.
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