Open Courts and Privacy
Privacy Law in Canada
Remarks at the Supreme Court of British Columbia Education Seminar
November 9, 2011
Vancouver, British Columbia
Address by Jennifer Stoddart
Privacy Commissioner of Canada
(Check against delivery)
Good morning and thank you for inviting me to be here. I am so pleased to have this opportunity to share a few thoughts with you and I applaud the Court for having created the opportunity for this important discussion.
I’d like to begin my comments by emphasizing that I do not have jurisdiction over the courts, which are not subject to the provisions of the Privacy Act. Over the past few years, however, I have spent a great deal of time thinking about the open courts principle in the context of an area where the Privacy Act does apply – the posting of decisions by federal administrative and quasi-judicial bodies.
This morning, I have been asked to offer some thoughts on privacy and open courts in the broader context. Please accept my comments as they are intended – the thoughts of one privacy advocate.
Open Courts Principle
The open courts principle essentially stands for the proposition that the courts should be open to the public for scrutiny and criticism. This has long been recognized as a cornerstone of the common law.
Many judicial decisions and academics cite Justice Dickson’s reference to Jeremy Bentham in the 1982 Supreme Court of Canada case Attorney General of Nova Scotia v. MacIntyre:
In the darkness of secrecy, sinister interest and evil in every shape have full swing....
Where there is no publicity there is no justice.
The open courts principle seeks to prevent arbitrariness, corruption and injustice. Its origins date back to the early 17th century English experience, when the legitimacy of the Crown’s rule-making was being questioned by Parliament. It pursues the objectives of accountability, legitimacy of the process, and public confidence in the justice system. It’s clearly an important principle.
But the open court principle is first and foremost about the courts, not those who are seeking justice in it or are earning their livelihood reporting on court activities.
Privacy is not necessarily always in conflict with the open courts principle. However, privacy issues do need to be considered when disclosing personal information – whether to advance the open court principle or not.
Importance of Privacy
Indeed, Canadian courts have highlighted the importance of both the open court principle and privacy. The Supreme Court of Canada has often been required to balance these important principles. In many cases, the Court has ruled in favour of privacy.
Of course, one of the key ways in which openness may be limited in appropriate cases is with publication bans. Bans can be obtained pursuant to common law or statute in both the civil and criminal context. Examples of statutory publication bans include bans ordered in accordance with the Criminal Code, Youth Criminal Justice Act, as well as in the context of family law proceedings, child protection cases, and in accordance with health and social assistance statutes.
In both the criminal and civil context, where bans are ordered pursuant to a discretionary power, the exercise of the discretion must meet the Dagenais/Mentuck test established by the Supreme Court of Canada. In contrast, challenges to mandatory bans will be evaluated according to the traditional Oakes test. However, both tests involve balancing various interests, including privacy considerations.
The Internet and practical obscurity
Rapid advances in information technologies have had a dramatic impact on our concepts of access and openness.
Until the Internet came along, the concept of practical obscurity operated in favour of privacy protection and the need-to-know principle. Generally speaking, only people with a particular interest in a matter would go through the trouble to obtain information about it.
In the not-so-distant past, access to court proceedings required some effort – going to the courthouse to watch a proceeding, digging through specialized texts or waiting in line and paying for copies of court documents. Some of us here are old enough to remember trips to musty basement records rooms not so long ago.
Today, it usually takes little effort to find records thanks to legal search databases and basic tools such as Google searches.
Technological advancements have led to some positive developments in terms of simplifying access to records.
However, broad access without due consideration of privacy issues can be extremely harmful to individuals. In some cases, we see limitless access online information concerning parties, and even non-parties to proceedings, which greatly surpasses the objectives of the open courts principle. Search engines now pick up all published references to a name, unless certain protections are in place.
People who are looking for this information online may be simply curious and nosy, or they may actually be maliciously using the information for fraud, stalking, intimidating witnesses and so forth.
The Chief Justice of the Supreme Court of Canada, Beverley McLachlin, in her 2003 speech on “Courts, Transparency and Public Confidence,” said that in the era of 21st century technology, the open court principle can mean an “enormous” loss of privacy. She has called on courts to find a way to preserve all the values at stake to the greatest extent possible.
Impact on parties
Openness in an online world can have a significant human impact.
Last month, I appeared before a Senate committee at its request. It was conducting a statutory review of legislation concerning the production of records in sexual offence proceedings. I spoke in favour of the formal judicial process created to guide the appropriate production of records in these types of cases. The process includes a mechanism to scrutinize the privacy impacts of producing records containing the personal information of complainants and witnesses.
In my Office’s several investigations of federal administrative tribunals’ use of personal information, many complainants told us they were distressed to discover – often with no prior notice – that personal information about them was available on the Internet for neighbours, colleagues and prospective employees to see.
No doubt, many people who have come before the courts have had the same experience.
I am also concerned about the potential for a broader impact: Will the potential disclosure of their personal information cause people to be apprehensive about seeking recourse or justice because of the potential for humiliation and embarrassment, or even concerns for their safety?
Certainly, parties and witnesses could face embarrassment or intimidation before the Internet came along.
But, as Professor Karen Eltis warned in a recent McGill Law Journal article, these pre-existing difficulties are “exponentially worsened” by the posting of court records online, word-for-word. Although the objective of online posting is to increase access to justice, it has the ironic consequence of deterring participation in the justice system, which actually frustrates the objective of access. According to Eltis, if we rethink privacy within the cyber context, it can be considered an ally of openness in the court system.
If people are deterred from going to courts or tribunals to enforce their rights or seek justice, we, as a society, need to be extremely concerned about access to justice.
Permanence of the Internet
Another important factor to consider before posting personal information online is its permanence. Once information is out there, it can be impossible to remove.
Even courts can lose control over documents once they’re posted on the Internet. Records can be reposted and modified endlessly, and there is no real way to recall the information if an error has been made. Let me give you an example:
A.B. v. Canada (Minister of Citizenship and Immigration) is a 2010 Federal Court of Appeal case involving an HIV-positive man who was granted refugee status after applying for judicial review. He was not aware that Federal Court decisions were posted online and had not sought to have the decision anonymized. After the decision was posted, he obtained an order for its anonymization and all other docket information.
However, in the period before the anonymization took place, another judge in a case before the Federal Court, quoted from, and relied upon the earlier decision. This decision disclosed the man’s HIV status and his surname appeared in the cited style of cause.
The individual was not able to have the relevant passages in this other judgment anonymized. This extremely sensitive personal information about him remains widely available.
The case raises the question of why those who come before the courts bear the onus of raising this issue in a setting that in unfamiliar to them, and why it is not the responsibility of those who run the justice system, such as court administration officials.
The permanence of online information is also a concern in the context of the boom in online journalism, blogging, tweeting and other types of social networking.
In the 2009 defamation case, Grant v. Torstar Corp, Chief Justice McLachlin noted that blog postings and other online media are “potentially both more ephemeral and more ubiquitous than traditional print media”. In other words, while they may seem temporary, they are also far reaching.
As many of you have heard, the Supreme Court of Canada has recently granted leave to appeal in a relevant case, AB v. Bragg Communications. This case involves a 15-year old girl who became aware that someone had set up a fake Facebook profile in her name. It was a case of sexualized cyber-bullying.
The teenager applied for an order requiring Bragg Communications to disclose the identity of the persons who had used a particular IP address. This was granted by the Nova Scotia Supreme Court.
The teenager also sought an order which would allow her to proceed by pseudonym, as well as a partial publication ban to prevent the public from knowing the exact words contained in the fake Facebook profile.
Not unexpectedly, this was opposed by a newspaper and television network. This additional relief was not granted.
The Nova Scotia Court of Appeal upheld that decision. My Office may seek leave to intervene before the Supreme Court of Canada given my concern with the serious realities of online bullying, harassment and its consequences on young people.
Concerns about privacy in an online world are also raising interesting questions for judges and other types of adjudicators on a daily basis. In light of the growing concern about the impact of the Internet on the privacy of individuals, there is increasing attention on the type and extent of personal information included in decisions.
The Canadian Judicial Council has recognized the impact of the Internet on access to court decisions and thus the way judgments should be written. Their guidance document, Protocol for the Use of Personal Information in Judgments, provides specific recommendations for protecting the privacy of personal information, such as omitting personal data identifiers.
As a result of our investigations of the disclosure of personal information on the Internet by several federal administrative and quasi-judicial bodies, my Office has also developed a guidance document. The Guidelines explain how administrative tribunals can remain transparent and open about their functioning without disclosing personal information in their reasons for decision. This can be done by omitting the names of the parties or by removing personal details. The use of web robot exclusion protocols should also be considered.
In closing, I’d like to say how positive it is to see so many people – here and across the country – turning their minds to the issue of ensuring that Canada can enjoy both a transparent justice system and strong privacy protections.
The Internet has changed the dynamic between access and privacy. It’s time to redefine the traditional concept of the open court principle within the context of the digital and technological age we now live in.
Just as a final quick note, if you’ll permit me, I’d like to make a quick plug for an important new publication from my Office. Our Privacy handbook for Lawyers is called PIPEDA and Your Practice and explains the application and requirements of PIPEDA in the context of managing a law practice. It also describes the application of the legislation to civil litigation.