Jaqueline Burkell and Jane Bailey
(2017) 48 (1) Ottawa Law Review 147.R
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 pur- poses have expanded and shifted over time.CurrentlyinCanadathe adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witness- es, encompassing not only information contained in court judgments, but also information contained in documents led in court oces. Historically, not- withstanding this presumptive access, practical obscurity has protected much of this information, in that most people will not trouble themselves to physically attend court onces in order to review records led there. While the practical obscurity generated by having to physically access court records made it dif- cult 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 o ers the bene t 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 re- moves 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 funda- mental human right to privacy without substantially contributing to the under- lying 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.
About the Author:
Jane Bailey teaches cyberfeminism, technoprudence, contracts, and civil procedure courses. Her research focuses on the impact of evolving technology on equality, privacy, freedom of expression and multiculturalism, as well as the societal and cultural impact of the Internet and emerging forms of private technological control, particularly in relation to members of socially disadvantaged communities. She is the team leader of Working Group 1 on a 7-year MCRI project entitled "Rethinking Processual Law: Towards Cyberjustice" and a co-principal investigator with Dr. Valerie Steeves of the Department of Criminology on The eQuality Project, a 7-year SSHRC Funded Partnership investigating the relationship between online behavioural targeting of youth and "cyberbullying". She and Dr. Steeves previously co-led "The eGirls Project" , a project focusing on girls' and young women's experiences online that was funded by a 3-year SSHRC Partnership Development Grant. Her current research is focused on online harassment and hate, privacy and equality concerns arising from online behavioural targeting of youth, and access to justice.