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

See all articles by Jane Bailey

Jane Bailey

University of Ottawa - Common Law Section

Jacquelyn Burkell

Faculty of Information and Media Studies

Date Written: April 27, 2017

Abstract

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.

Suggested Citation

Bailey, Jane and Burkell, Jacquelyn, Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties' and Witnesses' Personal Information (April 27, 2017). Ottawa Law Review, Vol. 48, No. 1, 2017. Available at SSRN: https://ssrn.com/abstract=2959794

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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