Case Law Individual Online Privacy

Case Law by Tribunals and the Individual Privacy on Internet

It has long been a central tenet of our legal system that justice be administered in a fair and open manner. Until recently, that openness was limited by what has been called the “practical obscurity” of paper. We have now moved from using paper to post the proceedings of our courts and tribunals to using digital posting via the Internet. The consequences for privacy have been significant – and often not positive.

Not 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, many (in the United States, Canada, etc) learned cases by individuals’ names. Students often hear in those jurisdictions that the use of names is a necessary part of truth-finding and in accordance with the fundamental “open court” principle.

This is an important part of many legal system based on the historic principle that that the public must be informed about, and be able to scrutinize decision-making processes to ensure they are fair.

However, many authors are not convinced that the broad public needs to know the names of individuals involved or requires access to intimate personal details through decisions posted widely on the Internet.

Many other administrative and quasi-judicial bodies post online reasons for decisions that link identifiable individuals with a great deal of sensitive personal information.

Information at Risk

Decisions of administrative and quasi-judicial bodies often contain personal details that not many people would be comfortable sharing widely: salaries, physical and mental health problems, detailed descriptions of disputes with bosses and alleged wrongdoing in the workplace. Other information of questionable relevance is also often included in decisions of these bodies – the names of participants’ children, home addresses, places and dates of birth and descriptions of criminal convictions for which a pardon has been granted, for example.

Many people 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.

Loss of privacy/access to justice

The lack of concern by tribunals and other bodies, in many jurisdictions (this is not the case in several European countries, like Romania or Spain, in the case of higher courts), for privacy may well limit access to justice. The risk of having personal details made public may make people reticent 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.

Public interest

In some cases, of course, there is room for argument about the need to provide personal information in decisions of tribunals. Was the publication of names in some cases necessary to protect the public, or was it an unnecessary infringement of the personal information of some people?

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.

Many persons understand and respect the need for transparency in decision-making processes and the need for tribunals to educate people about their work and their issues. But some legal principles are intended to subject government institutions to public scrutiny, and not the lives of the individuals who appear before them.

Possible solutions

Some authorities (such as the Privacy offices of Canada) have 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.

As an alternative, tribunals could remove all personal information that would otherwise be found in reasons for decision 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, in some jurisdictions, under national Privacy legislations to disclose such information.

For example, there may be a case for a tribunal to exercise this discretion where the public has a compelling interest in knowing the identity of an individual who has been found guilty in disciplinary proceedings, or of someone who poses a potential danger to the public.

Similarly, if a law or regulation authorizes the disclosure of personal information, the privacy legislation of the jurisdiction may not prohibit that disclosure. In this way, the legislation of these jurisdiction 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.

David Loukidelis, the Information and Privacy Commissioner for British Columbia (Canada), said in a speech to the Canadian Bar Association: “No one suggests that privacy should defeat the vital principles of openness and accountability in tribunal processes. That said, where individuals are caught up in tribunal processes, their privacy deserves respect and protection. This is not a zero sum game.”

Author: based in part on Jennifer Stoddart notes, with several changes