The adjudicative process in the Internet age: A new equation for privacy and openness

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Canadian Institute for the Administration of Justice National Roundtable

May 28, 2010
Montreal, Quebec

Chantal Bernier
Assistant Privacy Commissioner of Canada

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Introduction

This document intends to provide an overview, a framework, of the approach of the Office of the Privacy Commissioner to address the issue at hand: how can the fundamental right to privacy be protected and the fundamental principle of open court be fulfilled in the age of unlimited access through electronic media? This analysis is focused on federal administrative tribunals, but addresses some of the underlying issues in balancing the individual right to privacy with the collective right to open justice, namely:

  • What is the essence of the open court principle?
  • What is the essence of privacy?
  • What is the relevant impact of technology?
  • How can privacy and openness be furthered in the new context of information technology?

The open court principle applies to the courts completely, and even they have established guidelines in light of the potentially invasive effect of technology.  The OPC’s jurisdiction extends only to federal administrative tribunals under the Privacy Act. While there may be strong arguments in favour of transparency of administrative tribunals, they are not identical to courts. We have therefore recommended that they adopt practices to ensure an appropriate balance between openness and protection of sensitive personal information.

The Heads of Federal Administrative Tribunals Forum have acknowledged the need to consider privacy in the use of personal information in decisions and their posting online, and issued a statement to that effect. The OPC, in collaboration with provincial and territorial regulators, issued a guidance document, Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals, attached, to give general assistance to adjudicative bodies across Canada wrestling with these issues.

1. The essence of the open court principle

The notion of the open court principle has inspired some of the most eloquent, almost lyrical, legal statements.  From Jeremy Bentham, the English philosopher and jurist in the late 18th century:

“In the darkness of secrecy, sinister interest and evil in every shape have full swing… Publicity is the very soul of justice…It keeps the judge himself, while trying, under trial.”Footnote 1

To Irish bencher and British law Lord John Atkinson at the turn of the last century:

[I]n public trial is to found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it confidence and respect.” Footnote 2 to our own Supreme Court’s Justice Morris Fish,

“The administration of justice thrives on exposure to light and withers under a cloud of secrecy.”Footnote 3

Two main points emerge from these quotes as the essence of the open court principle:

  • The open court principle places secrecy and transparency in opposition, not privacy and transparency
  • The open court principle pursues three objectives that may be reconciled with the protection of privacy:
    •  Accountability of the tribunal,
    • Legitimacy of the process.
    • Public confidence in the justice system.

2. The essence of privacy

Over the years, Canadian case law has drawn parameters around the right to privacy that may be summarized as follows for the purpose of our discussion:

  • Privacy is a constitutionally protected, fundamental right;
  • Privacy is the individual right to the protection of personal information;
  •  It is both inherent, to protect personal integrity, and instrumental, to protect against harm;
  • It may be overridden by public interest only as,
    • Necessary and justified in a free and democratic society;
    • Proportionately to that need;
    • Effectively in relation to that need and,
    • In the absence of less privacy-invasive alternatives.

3. The impact of technology : a new equation between openness and privacy

Arching back to Jeremy Bentham, Chief Justice Beverley McLachlin puts to us the challenge of furthering the open court principle in the era of the Internet:

“ The open courtroom remains as essential today as it was in Bentham’s time. Yet, the omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness may exact costs – costs that require the judges and the media to reassess the means by which they further the principle of open justice.”

And,

“ The first cost of the open court principle is to privacy….In Bentham’s day, the open court principle meant limited loss of privacy.” Footnote 4

Herein lies the crucial change in the equation between privacy and openness: the Internet has brought unlimited loss of privacy. In particular, information technology distorts the application of the open court principle with three broad impacts:

  • Breadth of access:
    • The harm to parties well exceeds mere embarrassment or the traditional expectations of loss of privacy inherent to the adjudicative process;
    •  Factual anonymity that came from the practical hurdles of access are removed;
    • The notion of openness to the “public” has gone from a few to all;
  • Permanence of record:
    • Written records are created where formerly a mere oral account would have taken place;
    • Electronic records are saved even beyond the control of the author;
  • Inefficiency of traditional protections:
    • Dissemination goes beyond the territorial application of publication bans;
    • Electronic media challenge traditional definitions of publication.

Beyond the loss of privacy, the spread of information technology to tribunals has also brought the loss of a principled approach:

  • While the open court principle was directed towards accountability  of the court, the spread of information through the Internet often focuses on the personal information  of  the parties;
  •  Coverage of the adjudicative process may go from the vested interest in the case, or in the administration of justice, to voyeurism;
  • Interest is not only moved  by ensuring justice but too often by mere curiosity;
  • Access goes from a controlled, principled approach to loss of control.

In short, to preserve the essence of the open court principle, we must review its modalities in relation to fundamental rights, including the right to privacy. Chief Justice Beverley McLachlin would say that we must move from a “hierarchical approach” that places the principle of open court in opposition to the right to privacy, and declares its general predominance to a “contextual balancing” that assesses competing values on a case-by-case basis. We would put forward that it also entails that we move from a static notion of personal information to a dynamic notion of “impactful information.”

4. Furthering open justice and privacy in the Internet age

The attached guidance document represents the OPC’s position on the meaning of the open court principle in light of the fundamental right to privacy in the age of the Internet, in the context of federal administrative tribunals. It rests on Canadian case law on the right to privacy in relation to its definition and its limits. Mainly, we advise administrative tribunals to,

  • Issue information management policies that reflect the impact of the Internet and the publication of decisions on-line;
  • Notify parties of these policies;
  • Balance the public interest to know with the individual right to privacy by
    • Anonymizing decisions where there is no public interest in disclosing identities of the parties ;
    • Eliminate from decisions personal information that is unnecessary and could lead to identification;
    • Encourage parties to withhold immaterial, identifying, personal information;
    • Assess public interest for disclosure of identity according to
      • Sensitivity of the information
      • Mandate of the tribunal
      • Expectations of affected individuals
      • Gravity of harm of publication
      • Public interest in knowing the proceedings and the outcome
      • Finality of the decision
  • Adopt technology to protect privacy.

Conclusion

Openness and privacy pose a new challenge in the age of the Internet, one that does not put in question the principles at hand but rather the modalities for their fulfillment. To guide us in preserving the essence of openness and privacy, we put forward the following guidelines:

  • The open court principle entails the full disclosure of the adjudicative process.
  • The protection of privacy entails the protection of personal information.
  • Disclosure of the adjudicative process does not necessarily entail full disclosure of personal information.  
  • Personal information may be disclosed only where
    • It is necessary for the fulfillment of the open court principle
    • It is proportionate to that fulfillment
    • It is effective in  relation to the objectives of the open court principle
    • There is no less privacy invasive alternative to fulfill the objectives of the open court principle 

Link to the guidance document: Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals: What should administrative tribunals consider when contemplating Internet publication of their decisions?

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