Judicial information in electronic media and social networks
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Remarks at the 4th International Seminar on Access to Judicial Information and its Benefits for Society
October 26, 2011
Mexico City, Mexico
Address by Chantal Bernier
Assistant Privacy Commissioner of Canada
(Check against delivery)
Overview
The central issue before us today is how to strike the right balance between two very important values: open court and individual privacy rights. I very much appreciate the chance to exchange ideas with this audience about reconciling these values.
It has long been a central tenet of any democratic legal system that justice be administered in an open manner—not only to be fair, but to be seen to be fair. Until recently, that openness was limited by what has been called the “practical obscurity” of paper and the physical confines of a courtroom.
We have now moved from the constrained access of courthouses and paper to digital posting of proceedings via the Internet. In this area as in so many others, “the Internet”—which is now shorthand for digitization and networkization of data—is the great game changer. The consequences for privacy have been significant—and often not very positive.
The argument I would like to put to you today is that the Internet has not merely changed the level of transparency of justice, but its nature. To such an extent, in fact, that we must rethink the modalities of judicial transparency to address the differential impact of the Internet as it topples the established balance between judicial transparency and privacy.
The Office of the Privacy Commissioner of Canada (or OPC) has issued guidelines to reconcile transparency and privacy in federal administrative tribunals. I hope they can serve as an example of how to tackle the very new challenge of balancing judicial transparency and privacy in the digital age.
I will talk to you about the issues surrounding judicial transparency in the Internet age, and then the role of the Office of the Privacy Commissioner of Canada and its jurisdiction over federal administrative tribunals and courts.
I will then go to the heart of my presentation, which is a re-evaluation of judicial transparency in the digital age based on the essence of the principle of judicial transparency, the essence of the right to privacy and the differential impact of the Internet on the two, and finally I will share some examples and practical recommendations for applying both the principle of transparency and the principle of privacy.
The issue
I will begin now by giving you an overview of the legislation in place to protect privacy in Canada, and of the role of the OPC in this context.
There are two federal acts overseeing personal information in Canada: one aimed at the private sector and the other, at the public sector—as is the case in Mexico.
The mandate of the OPC is to oversee compliance with federal privacy law. We exercise our mandate through six well-defined functions:
- We respond to information requests—over 11,000 a year;
- We receive and investigate complaints—over 200 a year against the private sector and over 600 against the public sector;
- We review privacy impact assessments (or PIAs) submitted to us by federal organizations about their programs or activities which may entail the collection of personal information;
- We audit the personal information management practices of organizations subject to either act;
- We perform and support research and public education activities; and
- We support Parliament by commenting on bills and amendments that touch on privacy issues.
I would like to emphasize at the outset that Canadian courts are not covered by the federal Privacy Act in Canada. The OPC’s jurisdiction extends to more than 30 federal administrative and quasi-judicial tribunals under the Privacy Act. They consider issues such as the denial of pension and employment insurance benefits, compliance with employment and other professional standards, allegations of regulatory violations, and challenges to the federal public service hiring processes.
Among the crucial distinctions between judicial courts and administrative tribunals in Canada:
- Administrative tribunals are subject to access to information and privacy laws; superior courts are excluded.
- Administrative tribunals remain accountable to the legislatures that create them.
- Members of administrative tribunals are usually selected and appointed by the executive. They are independent, through built-in arms-length relationships, but they are part of the executive.
- The citizens appearing before administrative tribunals often do so without legal representation, and those who compose the tribunal are often citizens untrained in the law. All involved are therefore likely to have little experience in identifying privacy issues and little familiarity with exceptions to the open court principle.
The level of independence of administrative tribunals may vary according to their enabling legislation, but they are subject to the same constitutional rules of natural justice, impartiality and fairness as the courts. Hence, the underlying principles of transparency and privacy apply to administrative tribunals as they do to the courts, and the law that covers privacy in government also covers transparency and privacy in administrative tribunals.
Through the Privacy Act, Parliament made a conscious decision to impose specific rules on these bodies about their handling of personal information. These bodies commonly publish their decisions on the Internet, even though the decisions often contain personal details that not many people would be comfortable sharing widely—salaries, physical and mental health problems, detailed descriptions of disputes with employers, and alleged wrongdoing in the workplace. Other information of questionable relevance is also sometimes included in the published decisions, such as the names of children, home addresses, places and dates of birth, and descriptions of criminal convictions for which a pardon has been granted.
And yet, eminent judges in Canada have questioned the proper balance between privacy and transparency in the digital age, even in the courts. So it may be worth going back to that general principle for a moment as our starting point.
The essence of judicial transparency
I will now go to the premise of my argument, which I will illustrate with two quotations.
First, the democratic importance and the nature of the open court principle, which are captured in a quote from Jeremy Bentham: “Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial.”
Two main points emerge from this quote 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 is an important part of the Canadian legal system. It exists to ensure the effectiveness of the evidentiary process, to encourage fair and transparent decision-making.
It has long been a central tenet of our legal system that justice be administered in a fair and open manner. At the turn of the last century, Irish bencher and British Law Lord John Atkinson acknowledged that a public trial can be a discomfiting process for the accused, witnesses and other participants.
Even so, he argued, “in public trial is to be 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.”
More recently, Canadian Supreme Court Justice Morris Fish observed that “the administration of justice thrives on exposure to light and withers under a cloud of secrecy.”
Again, the principal tension is put between transparency and secrecy; it should not be between transparency and privacy.
Indeed, privacy can and ought to be preserved, even in the pursuit of other important outcomes of transparency—notably the legitimacy of the adjudicative process, the accountability of the court or tribunal, and the assurance of public confidence in the justice system.
The differential impact of the Internet
The impact of technology on the equation between openness and privacy is expressed 160 years later by the Right Honourable Beverley McLachlin, Chief Justice of the Supreme Court of Canada, as she challenges us on furthering the open court principle in the era of the Internet. Her main point is that the open court principle was never meant to compromise privacy as it does in the digital age:
“The first cost of the open court principle is to privacy…. In Bentham’s day, the open court principle meant limited loss of privacy.”
Openness remains a key functional principle of justice, but the Internet represents a crucial change in the equation between privacy and openness.
The Internet represents crucial changes
The Internet distorts the application of the open court principle through three broad impacts:
- It removes the limits to the loss of privacy that were physically inherent to the traditional court process;
- It removes the protection of privacy from the control of the tribunal;
- And, in its most perverse impact, it turns the focus away from the tribunal and toward the parties.
Among other things, online access rewards prurient interest. While the point of open court is to preserve the accountability of the court, Internet access often focuses on little more than the personal information of the parties.
Moreover, broadcasting and disseminating personal information far beyond traditional circles means that the modern concept of openness has escalated from the few to potentially all.
The power and possibilities of electronic dissemination will also increasingly test the integrity—and therefore the effectiveness—of publication bans.
And wherever the information flows, it can create a record that is permanent, and beyond the control of the original author.
As everywhere in society, technology in the judicial system can be good or bad, but it cannot be ignored. The challenge is to accommodate the new openness wrought by technology, in a way that minimizes the harm to privacy.
Chief Justice McLachlin calls for a “contextual balancing” that assesses competing values on a case-by-case basis. We would go farther, moving from a static notion of personal information to a dynamic notion of “impactful information.”
By that, we mean adopting a stance on the protection of privacy that takes into account the real impact of disclosure of personal information on the individual, rather than a theoretical definition of what constitutes personal information.
In that context, the challenge of protecting privacy in the era of the Internet takes on its full importance.
Moving forward
The kinds of balancing acts we’re talking about here have always mattered, but technology has clearly brought about dramatic changes in many respects.
In her trenchant 2003 analysis, which I quoted earlier, the Right Honourable Beverley McLachlin put forward the challenge of furthering the open court principle in the Internet era. As she wrote in the Deakin Law Review, “the omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness may exact costs . . . that require the judges and the media to reassess the means by which they further the principle of open justice.”
I would underline her last point: the objective is to further the principle of open justice through respect for privacy, not curtail it. It is with that view that the OPC proposes guidelines to ensure transparency and privacy.
Working assumptions
Before I describe our guidelines, I would like to describe our working assumptions.
Firstly, the public interest in accessing information about tribunals’ proceedings does not obviously or necessarily extend to obtaining access to identifying information about individual participants.
Most of the time, posting de-identified decisions, replacing names with random initials, does not interfere with the open court principle.
I certainly do not debate the need for public access to information about tribunal proceedings. This maintains confidence in their integrity, enhances the evidentiary process, promotes accountability and furthers public education.
But you can do all that without disclosing the identities of the people appearing before tribunals. You don’t need to know the participants’ names to fully and transparently debate the facts and issues of a particular case.
Secondly, it is also important to note that, in those cases where there is a genuine and compelling public interest in disclosure of identifying information that clearly outweighs the resulting privacy invasion, institutions do have the discretion under the Privacy Act to disclose such information.
This could include, for example, cases where the public has a compelling interest in knowing the identity of an individual found guilty in disciplinary proceedings, or of someone who poses a potential danger to society.
Where there is a compelling public interest in the disclosure of identifying information—an interest that clearly outweighs the resulting invasion of privacy—any institution covered by the Privacy Act may exercise discretion to disclose in the public interest.
Thirdly, I want to underline that this public-interest provision has a very high threshold and is justified only in exceptional circumstances. It is not properly invoked where there are less impairing options, such as de-identifying or anonymizing posted decisions.
It is important to ask: Does the public at large need access to this information or would a more targeted disclosure on a need-to-know basis be sufficient?
In many cases, publishing individuals’ names on the Internet has significant and unintended punitive effects beyond the mandate of statutory tribunals. It’s up there forever.
Fourthly, we take the position that disclosure must be explicitly authorized by law or regulation. It is not enough for the disclosure not to be prohibited, or that the law or regulation is silent on the matter.
In Canada, tribunals widely utilize the Internet as an efficient, inexpensive and effective tool to communicate their decisions to the public. The benefits are many. By electronically disseminating their decisions, tribunals can better educate the public about their mandates, make precedent-setting decisions readily accessible, promote transparency and demonstrate accountability.
However, tribunal decisions may contain significant amounts of personal information. Some of this may be sensitive information, such as information about medical conditions, financial circumstances or mental health issues.
Many of us here remember the days when we had to trek down into the dusty courthouse basements in order to dig up records. One actually gave some thought about whether a particular document was really necessary. We have now moved from paper to digital posting via the Internet. With nothing more than a few keystrokes, records are instantly available.
Often, the format of tribunal decisions published on the Internet and the personal information they contain has not changed to reflect the reality that the Internet provides unlimited access to tribunals’ decisions to unlimited persons for unlimited uses.
The impact of the Internet on privacy in justice matters can be seen in a newspaper story that came out a few years ago in Canada. The story was about the province of British Columbia’s new online court records system.
The online system permits searches for information about civil and criminal proceedings involving anyone—even those facing nothing more than a parking ticket.
In its early days, the system became so popular that it became difficult to get access to it because of the enormous volume of online traffic. There was a digital line-up for access.
One privacy advocate wryly noted that she’d never heard of people lining up around the block at the court registry to get access to that same information. Indeed, the limitations imposed by paper-based records had simply made it too much trouble to sort through such records before.
I don’t think anyone is claiming that this greatly increased thirst for personal information about others represents a pent-up demand purely for a valid societal purpose. Instead, it probably reflects other, often much less noble, ends—the unbounded and sometimes prurient curiosity of some members of the public, and the interest of others in exploring the potential of this online source for commercial exploitation or, in some cases, criminal gain through identity theft.
The easy online availability of this information might also facilitate discrimination, harassment and stalking.
In law school, we all learned cases by individuals’ names. We often hear that the use of names is a necessary part of truth-finding and in accordance with the fundamental open court principle. We need to rethink that assumption in the digital age.
Loss of privacy or loss of access to justice
The OPC has long shared the concerns of individuals who fear that participating in a tribunal proceeding could violate their privacy when the decision is ultimately posted online.
The lack of concern by tribunals and other bodies for privacy may well limit access to justice. The risk of having personal details made public may make people reluctant to assert their rights in administrative and quasi-judicial proceedings.
Given the many areas of our lives touched by such bodies, this effective lack of access to justice could be profoundly disabling for those who need disputes with governments, employers or service providers resolved. And why should a law-abiding citizen fighting for a government benefit be forced to expose the intimate details of her personal life to public scrutiny?
Any measure that would circumscribe the openness of the judicial or quasi-judicial systems must be carefully weighed, justified, and restricted in its application.
Over the years, Canadian case law has helped articulate the scope of the right to privacy. It has confirmed that privacy, including the protection of personal information, is a fundamental right that is protected by the Constitution.
The right is both inherent (a means to protect personal integrity) and instrumental (a protection against harm).
That said, there are instances where the right to privacy may be overridden by conflicting exigencies, including the broader public interest.
In order to weigh competing interests, our analysis draws on the Oakes test, a four-part test based on a 1986 Supreme Court of Canada decision. Essentially, we require it be demonstrated that, where a measure intrudes upon privacy:
- It is necessary and justified in a free and democratic society;
- The measure is proportionate to that necessity, which means that the encroachment on privacy is no greater than what is strictly necessary;
- The measure is effective and therefore the encroachment on privacy is shown, empirically, to be necessary;
- There are no alternative measures that would be less intrusive.
When it comes to privacy and transparency, the issues that must be taken into account rest on the principle that the public must be informed about decision-making processes, and be able to scrutinize them, in order to ensure they are fair.
However, the OPC is not convinced that the broad public needs to know the names of the individuals involved, nor does it require access to intimate personal details through decisions posted widely on the Internet.
Many of the tribunals we investigated under the Privacy Act argued that the open court principle requires the online publication of decisions.
The OPC understands and respects the need for transparency in the decision-making process and the need for tribunals to educate people about their work and their issues. We ourselves publish reports of findings on our website.
But we must remember: The open court principle is intended to subject government institutions to public scrutiny, and not the lives of the individuals who appear before them.
Over the years, as administrative tribunals subject to the Privacy Act began to publish their decisions online, people complained that their personal information contained in decisions had been posted on the Internet without their knowledge or consent.
Most of those people had entered their name into a search engine and found decisions that were 5, 10 or even 15 years old.
Many of these 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.
A long-ago transgression or temporary lapse in judgment could continue to haunt an individual for many years. Even if no past transgression was involved, the nature of the personal information that was being disclosed could be deeply embarrassing.
Recommendations
In cases where the complaint was well-founded, we made the following recommendations:
- That administrative tribunals de-identify as appropriate subsequent decisions using random initials, or that they post summaries of decisions with no identifiable personal information.
- That administrative tribunals follow the OPC’s guidelines on the use of their discretionary powers in all cases where posting a decision on the Internet amounts to disclosing personal information.
- That decisions about which a complaint has been filed with the OPC be removed from the Internet until they can be de-identified.
- That the indexing of names from previous cases be restricted through the use of exclusion protocols, or that such cases be removed or de-identified as appropriate as soon as possible.
I am disappointed to report that, despite the clear intention of Parliament in extending the federal Privacy Act to cover personal information handled by administrative tribunals and despite the compelling case for preventing the release of identifying information in many cases, the problem of excessive disclosure persists.
Even after being advised of privacy concerns with their policies and practices, most government institutions have been reluctant to change them. In fact, some government institutions told the OPC that they plan to continue posting sensitive personal information as they always have.
Others took important but incomplete steps toward improved compliance with the Privacy Act. As a result of our investigations, some institutions have implemented technical measures to prevent the names of individuals who participate in their decision-making processes from creating “search hits” when typed into major search engines. Others have agreed to use initials in place of individuals’ names.
The varying responses to the OPC's recommendations mean that, even among those institutions that we have investigated, there remains inconsistent privacy protection for Canadians.
We are not empowered under the Privacy Act to bring this matter before the courts for further guidance. However, the OPC is committed to continuing to work with the government institutions that have been reluctant to implement all our recommendations to protect personal information. We hope that by maintaining a constructive dialogue, we will be able to persuade these organizations to take the steps necessary to protect Canadians’ privacy.
Integrating transparency and privacy
In order to formalize the positions we have adopted in our investigative findings, the OPC issued in early 2010 a set of guidelines on what administrative tribunals ought to consider when contemplating the online publication of their decisions. The guidelines, which we made public earlier this year, were developed in consultation with our provincial and territorial colleagues.
Recognizing that tribunals are diverse in terms of their enabling legislation and mandates, the guidelines call for a general approach, rather than a “one-size-fits-all” prescription.
As a first step, we encourage tribunals to be clear with the parties, in order to lessen the risk of privacy-related conflicts, and to be clear about reasonable expectations of privacy, and to assist parties in making informed choices.
For example, we suggest that tribunals inform the parties about the specific policies, statutes and regulations that govern their information-handling rules.
Tribunals should also publish a detailed written notice that describes how personal information is handled when reasons for decisions are to be published online.
Where there is discretion as to disclosure of personal information in decisions posted on the Internet, tribunals ought to develop a policy to guide each decision.
As a best practice, the guidelines encourage tribunals to consider whether de-identified or anonymized versions of the decision could be viable alternatives to full disclosure.
If personal identifiers have to be included in a tribunal’s reasons, we suggest that tribunals edit from the public posting all data elements that are not relevant to the decision itself. I am referring here to addresses, dates of birth, the names of family members, identification document numbers, and workplace names and locations.
Where names do have to appear online, the guidelines recommend that tribunals use web robot exclusion protocols, so that a routine Google search by name won’t bring up the decision.
They should, moreover, advise parties of steps they can take to identify and protect personal information in advance of a public hearing. For example, there’s usually no practical reason for people to include extraneous personal identifiers, such as state-issued identification numbers, in their submissions.
Through the Privacy Act, the Canadian Parliament has set express limits on the extent to which the open court principle authorizes the publication of federal administrative tribunals.
The Privacy Act says that personal information under the control of a government institution may be disclosed for the purpose for which it was obtained or compiled, or for a use consistent with that purpose.
The OPC has concluded that wholesale electronic disclosure of personal information contained in tribunal reasons for decision is not the purpose for which the information was obtained. Rather, tribunals collect personal information in order to make a decision based on the specific facts of a case.
The OPC has taken the position that the public interest in accessing information about tribunals’ proceedings does not obviously or necessarily extend to obtaining access to identifying information about individual participants.
It will most often not interfere with the open court principle if only de-identified decisions that do not reveal the identities of participants are made available to the public.
However, simple suppression of direct and obvious identifiers such as names is likely to represent the most efficient and effective means of ensuring individuals’ privacy is properly protected. This method of protecting privacy poses no significant threat to tribunals’ independence and ensures that the facts and issues in individual cases may be fully and transparently debated.
Where there is a genuine and compelling public interest in disclosure of identifying information that clearly outweighs the resulting invasion of privacy, institutions have the discretion under the Canadian Privacy Act to disclose such information.
Similarly, if a law or regulation authorizes the disclosure of personal information, the Privacy Act does not prohibit that disclosure. In this way, the Act recognizes the right of Parliament to create disclosure regimes that reflect the mandate of a particular tribunal and the demands of the open court principle.
I do not profess to say that the balance between openness and privacy will always be easy to attain. However, it is not a zero-sum game. The open court principle does not mean open season on the personal information that is placed before tribunals and other quasi-judicial bodies.
I do not want to suggest that the Privacy Act be used as an instrument to conceal wrongdoing. It was never intended to shield people who commit fraud, who pilfer the public purse, or who pose a danger to their fellow citizens.
But these are the exceptional matters that come to the attention of federal tribunals. When they do, and then there is a genuine public interest at stake, the Privacy Act does not stand in the way. It has provisions for disclosure.
In the majority of instances, however, the personal details of matters arising before administrative tribunals have no broader public interest.
And so, publishing individuals’ names on the Internet, absent any transgression of broader significance can be deeply embarrassing. It can, moreover, be punitive to a degree disproportionate to the issue at hand—beyond even the mandate of the tribunal.
Indeed, we have taken the view that the risk of having personal details made public may make people reluctant to assert their rights in administrative and quasi-judicial proceedings. While passive, this is still a restriction on access to justice—a consequence that should concern us all.
In closing
To summarize my position, I submit to you a third quote, this one from 20th century sociologist Edward Shils, who said:
“Democracy means full privacy for individuals, none for government.”
I think we can agree that there are ways to respect the open court principle while also avoiding or minimizing unwarranted harm to individuals.
Unwarranted, in the sense that they are merely witnesses, or family members, or people who have turned to one of our quasi-judicial bodies in the hopes of straightening out an employment situation, or obtaining a benefit, or finding a home in Canada.
The paramount principle of openness in adjudicative processes is not imperilled simply because we ask that institutions weigh the competing interests.
We ask only that a disclosure of personal information be in the public interest, and that the public interest actually outweigh the interest of the people most directly, and potentially gravely, affected.
We believe this is a nuanced, sensible and balanced approach that is fair to all.
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