Privacy versus Public Access in the Internet Era: The Issue of Online Tribunal Evidence

Court and Tribunal decisions, being a work under the direction or control of Her Majesty, fall under the Crown Copyright.[1] Because of the importance in a democratic society to provide unimpeded access to the law, the federal government has officially made an exception to the exclusive copyright possessed by the government for decisions and the reasons for decisions, of federally constituted courts and administrative tribunals.[2] Similar exceptions have been made at the Provincial level.[3]

Had the Crown not made an exception for judicial and tribunal decisions, the privacy of the individuals concerned in any legal process would be protected by restricting access to personal information contained in court and tribunal decisions. The balance between the Crown’s Copyright interest and the need for an open judicial system, however, weighed in favor of public access to justice, to the detriment of individual privacy. This has become a significant issue in the Internet era, where courts and tribunals post their decisions online, and are in the midst of setting up a system to post other court documents, such as pleadings and supplementary materials. Courts in British Columbia have already begun to post court documents in civil cases for a small fee.[4]  This shift in information management means that personal information used in the court proceedings, such as income tax statements, in addition to the individual’s name or Social Insurance Number, will be available online for the world to find. While court decisions have been open to the public for some time, there were the obstacles of having to go to the court and to know what you were looking for, to be able to gain access. With publication on the Internet, more people have unconstrained access to this information, which increases the risk that this information will be abused, leading to the violation of these individuals’ rights, for example, through identity theft or discrimination.

The traditional position on judicial openness in Canadian law was articulated by the Supreme Court of Canada in Attorney General of Nova Scotia v. MacIntyre, where Justice Dickson stated: “covertness is the exception and openness the rule.”[5] The question must be asked then, to what extent should the principle of judicial openness trump individual privacy? In my opinion, the tradeoff should not facilitate the violation of individual rights. The posting of court documents that reveal sensitive information about a person, other than his/her name, should be limited to only that which is necessary in promoting access to justice and confidence in the judicial and tribunal systems. Fortunately, the consensus seems to be that access to information that can be misused for such violations as mentioned above, will be restricted.[6] Even in British Columbia, sensitive information, such as what may be found in divorce files, is not posted.[7] While it is not clear to what extent individual privacy will influence the policy of judicial openness in the future, if in the Internet era openness remains the rule, there is more than the Crown Copyright to consider in the balance of justice.