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It seems as though everybody is talking about ‘privacy’, but it is not clear exactly what they are talking about

Daniel J. Solove[1]

Technology plays an incontrovertibly central role in contemporary judicial work and life, both on and off the bench. Along with tremendous benefits, it imports substantial new challenges that increasingly impact upon courts, litigants, and witnesses. Notwithstanding its growing relevance, the question of technology’s ramifications on the courts has thus far evaded scholarly inquiry almost entirely. As a result, they are left with little choice but to attempt to fit new technologies into outdated regimes and practices.[2]

Issues such as online court records and privacy, ex parte electronic communication, inadvertently e-mailed draft decisions, and the challenge to judicial independence posed by government-owned and operated court servers,[3] are arising with greater frequency. These challenges have prompted courts to revisit the conventional construction of fundamental concepts such as disclosure, accountability and the delicate balance between foundational values such as transparency and privacy.[4]

In an effort to alert courts to up-and-coming matters deriving from the use of technology, this article will concern itself first with identifying emerging issues arising from technological change generally. It will then proceed to address the challenges that electronic court records raise, particularly, the inadvertent disclosure of personal information in ways unanticipated by existing rules, and the resulting affront to the very access to justice that digital files were meant to promote. Canada’s Privacy Commissioner pointed to this emerging predicament, indicating, “The open-court rule—which is extremely historically important—has become distorted by the effect of massive search engines.”[5] In an effort to address the problem in the judicial context, this piece proposes an alternative, complementary understanding of the relationship between privacy and access in light of technological change.

With an eye towards generating practical recommendations in a crucial area previously unexplored in Canadian legal literature, this paper will adopt the following structure: Part I will provide a general introduction to the principal issues that emerging and existing technologies raise for judges and other participants in the justice process.[6] Because these cannot all be thoroughly addressed within these pages, the objective is not to provide a comprehensive survey. Instead, a few observations will be made in an effort to weave Parts II and III—which develop the questions of electronic court records, access, and privacy—into a wider fabric of reflection. Part II will then turn to online court documents more pointedly, explaining why the current presumption in favour of openness yields unsatisfactory results in light of technological change. It will proceed with an exploration of the issues surrounding the balance between the judicial system’s commitment to access, transparency, and accountability; and its fundamental obligation to protect litigants, witnesses, and others. Having already exposed the ills of unfettered access in terms of quantity of information, rather than relevance or quality, this article, in Part III will then posit an understanding of privacy in this context—as part of access rather than adversative to it.[7]

I. The Impact of Technology on Courts and the Judiciary: An Overview

Before the day now known as 9/11 became forever etched in the world’s collective memory, a meeting of the Judicial Conference headed by Chief Justice Rehnquist, as he then was, was scheduled for 11 September 2001.[8] The gathering in question was to address a much-decried US government proposal to monitor federal judges’ electronic communications and Internet use.[9] In the midst of vocal protest,[10] monitoring software was installed in order to surveil the Internet use of federal judges and judicial employees.[11] The proposal, touted by Congress as a push for efficiency,[12] was said to represent a significant threat to judicial independence and a manifest violation of the separation of powers between the judiciary and the legislature, and indeed of institutional independence.[13]

The federal judiciary’s experience in the United States indicates that the idea of monitoring judges’ Internet and email use for content is far from theoretical.[14] The installation of monitoring software on judges’ computers is no longer unprecedented and therefore must be soberly addressed.[15] Moreover, since technology creates new criteria for measuring judicial productivity, judicial dockets can be monitored with great ease, and expectations of judges’ workload and performance can vary as a function of technological advances.[16] This is arguably doing violence to both independence and impartiality.[17] Similarly, government ownership of court servers may foster a perception of infringement upon the separation of powers, thus prompting some Canadian courts to take active measures towards electronically distinct servers and technical support.[18]

Let us now fast forward to 2006, to the trial of 9/11 bombing suspect Zacarias Moussaoui.[19] With the aim of promoting transparency generally, and responding to public interest in the trial specifically, the United States District Court for the Eastern District of Virginia decided to “broadcast” the proceedings on the Internet. Testimony, evidence, and related material were made available to the general public in the interest of a public trial.

Information of this nature (e.g., trial proceedings, court records) has always been public—with excellent reason. The distinction between the past and present circumstance lies in the new conception of “accessibility”; namely, now there is an audience of incalculable numbers with indiscriminate access. Individuals gain access to sensitive, personal information—oftentimes anonymously—in an unprecedented fashion. What is more, they can subsequently engage in intimidating or even threatening behaviour, if not identity theft,[20] facilitated by said anonymity.

Not surprisingly perhaps, and as posited herein, applying the traditional standards of disclosure to the World Wide Web can and has produced unfortunate by-products ranging from identity theft to witnesses being threatened by external parties. These parties, by virtue of the medium if nothing else, now fall into a class of “interested parties” who enjoy access to the intimate details of participants in the judicial process.[21]

Whereas few but the most dedicated (or academically interested) individuals would take it upon themselves to conduct empirical research, the mere click of a button results in a bilan (taking stock) not only of decisions (previously available data) but of judges’ and litigants’ personal connections and associations. What is more, in contradistinction to an access to information request,[22] a search engine expedition can reap inaccurate if not misleading data—an aggregate of oft-unrelated and potentially unreliable morsels of information supposedly concerning the litigants or judge or both directly or indirectly.

With respect to judges in particular, activities or associations (such as membership in cultural or religious community) previously deemed perfectly acceptable at the very best, or innocuous, if not completely irrelevant, at the very least, now risk tainting the perception of impartiality; thereby further constricting the realm of “ethical” expression and association outside Chambers.[23]

Whereas the substantive nature of said activities and the rationale governing their tolerability has remained unchanged, the perception thereof may have. This, if only because “discrete” Internet postings (verified or false) may cumulatively serve to generate a generally unreliable, ad hoc “digital portrait” of the judge. Such data has become universally available with unprecedented ease. The Internet generally, and search engines specifically, make googling the judge a far less onerous—albeit no more dependable—activity, thus potentially giving rise to increased and presumably frivolous allegations of partiality.[24]

Not only is data purportedly pertaining to the judge’s own expression and association “fair game” but also information relating to their family, colleagues, and former associates—not to speak of litigants. This information might also inadvertently be attached or be involuntarily or erroneously attributed to him.

What is more, a judge’s impartiality can be brought into question for arguably improper motives[25] relating to her very identity such as gender, ethnicity, religious observance (or lack thereof), and sexual orientation—deemed “prohibited grounds” per section 15(1) of the Charter. Ill-intentioned individuals (from judge shoppers to prejudiced parties) can easily stage-manage Internet data to fashion the appearance of bias, using the judge’s “core identity” against him. This may lead to claims discriminating against judges of certain backgrounds, the effect of which might be to exclude them from sitting, contrary to section 15(1) of the Charter.[26] Thus, in addition to further constricting judicial expression (whose narrowness is already decried),[27] technology may serve to reprimand a judge’s very identity (gender, cultural, religious, or other)—in terms of either appointment or recusal—as cultural affiliations enter disputes in an increasingly multicultural society.[28]

Perhaps the most prominent illustration of the aforementioned (non-scholarly) “judicial profiling” is that of Justice Hazel Cosgrove, the first female Supreme Court judge in Scotland, who stood accused of bias in a recent immigration case.[29] Charges that her Jewish background and membership in the International Association of Jewish Lawyers and Jurists[30] were raised as grounds for her disqualification from hearing a case involving the denial of asylum to a Palestinian refugee, Ms. Fatima Helow.[31] This claim was brought after Ms. Helow’s attorneys googled the judge and found that she was a member of a Jewish professional association.[32] This information was used to attack the judge notwithstanding the fact that Ms. Helow did not claim that the judge’s decision reflected any bias. While Justice Cosgrove was cleared of “lacking impartiality”,[33] the mere incident stands as a warning to judges regarding the ready dissemination of personal and unrelated information over the Internet, its availability to litigants, and the potential for resulting frivolous claims or manipulation.[34]

In this manner, technology can be said to reawaken and indeed transform the recurring issue of the relevance of a judge’s personal traits[35] and whether a party’s explicit request for a “custom-made judge” might be legitimately entertained if not approved.[36] In other words, as the debate regarding “individualized justice” or the notion of incorporating cultural sensitivity and “cultural pluralism” into the law[37] gains momentum,[38] the enhanced capability to look up and indeed “recreate” a judge’s (or judicial nominee’s) identity online, is bound to enliven the issue of a party’s entitlement to a judge tailored to their cultural specifications.[39]

II. Why Does Technology Matter? The Effect of Online Court Documents on Litigants and Non-Judicial Participants

By alluding to the Moussaoui case at the outset, this essay has already made reference to the distortions and potential ill-effects of unfettered access to mass Internet postings of court documents. These range from extreme threats of violence and harassment by both parties and “non-parties”, to more “routine” incidents of employee cyberscreening, identity theft, fraud, and spam. Examples of the former and of the latter certainly abound.[40] Whereas the above-recounted incidents in the Moussaoui case were isolated and presumably spontaneous, the United States Department of Justice warns of an entire web-industry, organized and specifically dedicated to collecting information from Internet court dossiers, with an eye towards intimidation and retaliation.[41]

Consider the following (now relatively common) occurrence of witness bullying, enabled—or at the very least assisted—by electronic records, as Snyder recounts:

Arrested for interstate drug trafficking in New Mexico, “Stewart” agreed to cooperate with authorities and testify against his co-defendants. The government filed Stewart’s plea agreement with the court, and an electronic version became available for download to the Public Access to Court Electronic Records Service (“PACER”) service. Shortly thereafter, Stewart’s PACER files where featured on, a website that claims to have exposed the identities of more than 4,300 cooperating witnesses and undercover agents. In an effort to intimidate Stewart from testifying, his co-defendants plastered the materials, which labeled Stewart a “rat and a snitch,” on utility poles and windshields in Stewart’s neighborhood, and sent them by direct mail to residents in the area.[42]

In addition to the embarrassment it can generate, free-for-all admission to court records online significantly facilitates witness-litigant bullying, and may even nourish an intimidation industry. This is certainly not to suggest that litigants could not be embarrassed, or that witnesses could not be “reached” prior to the Internet age; it is merely that these pre-existing difficulties are exponentially worsened by the indiscriminate posting of court records online, due to the nature of the networked environment.[43] Therefore, blanket filing, although aimed at enhancing accessibility, can in fact have the opposite effect online—inadvertently deterring participation in the justice system—thereby frustrating the very rationale underlying access. This unintended consequence arguably speaks to a phenomenon known as “translation”, coined by Justin Hughes in a different context; or, the need to find “legal tools to reach roughly the same balance of interests in the Internet that we have developed for the rest of our world.”[44] The Internet begs a sober rethinking of how we define access to court information in the Internet age, and of the current balance struck between this important value and privacy.

As Lyria Bennet Moses explains in her paper on the merits of revisiting norms in light of technological change, generally: “Existing rules were not formulated with new technologies in mind. Thus, some rules in their current form inappropriately include or exclude new forms of conduct.”[45] For the purposes of our discussion, an approach to posting court documents that discounts the impact of the networked environment on justice participants’ rights (primarily privacy and dignity) constitutes a far elevated—and perhaps at times intolerable— “transaction cost” for access to the courts and must therefore be reconsidered. Plainly put, courts may wish to reconsider the advantages and, indeed, the constitutionality of unbridled disclosure of records online when the rationale underlying the practice is “explicitly or implicitly based on a premise that no longer exists, and [is] thus no longer justified”[46] in light of technological change. The premise here being that blanket divulgation of data promotes access, and that privacy and transparency are countervailing in the cyber context.

I argue that, in this context, unrestrained disclosure can in fact disturbingly chill access to the courts. What is more, engaging in a de-contextualized “balancing exercise” between privacy and access becomes no more than an artificial enterprise if these values are not clearly defined (as shall be argued in Part III)—or worse, if they are anachronistically conceived as adversarial—in a virtual world where privacy can no longer be spatially confined; and where “wholesale access” to data produces little meaningful information. As a result, “access” may no longer serve the rationales of openness and accountability and instead undermines the very entry to justice it was intended to foster.

A. Paper Versus Net

In order to situate privacy and access in the online context and point to how the current “balancing” fails to achieve its purpose in light of technological change, it is useful to first consider how court documents on the Web differ from their paper counterparts. Although it is not the objective of this paper to thoroughly set out all distinctions between “paper and the Net”, it is nonetheless useful to highlight a few important differences.[47]

First, court documents are no longer protected by the “practical obscurity”[48] afforded by the paper records of years past. That translates into boundless, unprecedented, and unchecked distribution, with the ills commonly associated with most “good things” in unlimited and wholesale offering.

Most significantly, it increasingly involves a loss of court control over its own materials. That is to say that once unleashed online—however inadvertently—most of these files cannot be edited, effectively redacted, or recalled; often despite the court’s wishes and best efforts to do so. No case better illustrates the erosion of judicial dominion or oversight over online documents then the following matter, which arose in Israel recently.[49]

Succinctly, a man who purposefully kept his sexual orientation secret sued an Internet dating site (dedicated exclusively to same-sex couples) for refusing to delete postings by a former lover who the plaintiff alleged had assumed his online pseudonym in order to reveal his true identity and spread falsities regarding his HIV status. Following the standard practice, the pleadings were automatically and instantaneously posted online by the court system, including the very same impugned damaging details regarding the plaintiff’s orientation, sexual practices and health that prompted the suit. Although the judge did order the inflammatory details be promptly redacted from the decision at A’s lawyer’s request, immediately following publication, the first copy of the pleadings were left “floating” around cyberspace and could neither be tracked down nor effectively eliminated. Of course counsel’s tardy realization that the statement of claim would be posted online in accordance with the court’s standard practice was presumably at least partially to blame for the lamentable result. However, this phenomenon is quite common, as attorneys, not unlike judges, gradually awaken to the darker side of technology—certainly at a far slower pace than that at which documents can be electronically filed and distributed worldwide.

What is clear from this unfortunate matter is the courts’ loss of control over its own materials, contrary to one of the foundational principles of accessibility; namely, that the court controls its documents, the idea that it “[h]as a supervisory and protecting power over its own records”[50] and that the “[a]uthoring judge, not publisher, is responsible for contents of judgment.”[51] It is a state of affairs that presumably undermines judicial authority, creating absurd situations in which official anonymized versions of court files coexist alongside unedited copies, floating around cyberspace, readily available and featuring all of the personal details the court deemed inappropriate and sought to delete for the litigant’s protection. Moreover, whereas judges take pains to draft judgments in restrained and respectful language, lawyers—not to mention self represented litigants—are hardly as careful in phrasing their statements of claim and motions. With electronic records and e-filing, these often inflammatory declarations can be propagated on the World Wide Web for all to see. As noted, even if later “withdrawn” the damage caused is irreparable.

As Winn cautions:

The world of electronic information is a far less forgiving place ... the simple abstract rules developed for a world of paper-based information may no longer suffice to resolve complex problems of judicial information management. ... The failure of the legal system to maintain the ancient balance between access and privacy will lead to the greatest danger of all—inhibiting citizens from participating in the public judicial system.[52]

Somewhat less dramatically, but presumably no less disruptively, Internet postings have precipitated important difficulties in the commercial (particularly the trade-secret) context.[53] Such was the case, for example, with memoranda electronically filed by the United States Federal Trade Commission (“FTC”) containing sensitive facts about Whole Foods Market Incorporated in a merger matter.[54] The Commission failed to properly redact sensitive and potentially damaging business plans, including plans to close a number of stores, prior to posting the documents online. By the time the oversight was detected, and despite the FTC’s best efforts, it of course was too late.

While technical or clerical errors have occurred since time immemorial, and cannot be entirely avoided (nor is it suggested that their mere likelihood impede technological progress), the magnified harms that they can cause in the Internet context must be weighted—factored into the balance and into our understanding of access and privacy.

More importantly, access is a misleading term in the Internet age. The electronic court document debate should not simply be framed in terms of the public’s “right” to arbitrarily hoard information en masse, irrespective of its accuracy or relevance. Instead, precision and preservation of the integrity of data is a tremendous issue here, as the Internet, in Cass Sunstein’s words, “doesn’t have quality control.”[55] Plainly put, as data abounds, transparency (not to mention accountability) no longer relates to the ability to gather information per se—since erroneous, misleading, or simply meaningless data posted or collected indiscriminately can surely not be said to satisfy those values traditionally underlying access. Rather, it is about triage, about the quality and accuracy of the data available to us. Only a quality-centered approach can serve the goals of transparency and accountability so dear to democracy and the justice system. Not only does unbridled admission to data frustrate access to justice by litigants or others fearing humiliation or intimidation as described above, but it also risks creating the illusion of transparency or accuracy by inundating Internet surfers with a barrage of inaccurate if not dangerously misinforming data, thus frustrating the integrity of the justice system. Online disinformation can just as readily be fostered by too much “accessibility” as by the absence of worthy data.

In the words of Ejan Mackaay, “There is, if anything, an abundance of information; amongst the overload, the problem is how to select what information you need. This depends not merely on relevance but also on reliability or trustworthiness.”[56] As the old adage cautions, a little information can be more dangerous than none, particularly in light of what Daniel Solove labels the problem of “aggregation of data”[57] stemming from the Internet’s “searchability”. That is to say, previously disparate pieces of information concerning an individual floating in cyberspace can be assembled (incorrectly or even maliciously) to form a “comprehensive” digital profile of that person. Unlike an access to information request or paper record therefore, a search engine expedition can reap misleading but nevertheless persuasive data, an aggregate of unreliable yet compelling morsels concerning a given litigant, witness, or even judge—as the Cosgrove case illustrates. To paraphrase Solove, it is of a Kafkaesque rather than Orwellian privacy nightmare that we must be wary due to the cyberworld’s fragmentary nature.[58]

It therefore stands to reason that a misguided insistence on unbridled access to court information and intransigence in its regard, not only fails to promote transparency in respect of quality, but also can paradoxically undermine many of the very objectives publication serves. Surely inhibiting participation cannot serve the rationale underlying systems promoting online posting, such as the US Public Access to Court Electronic Records system known as “PACER”, whose stated objective was to bring “the citizen ever closer to the courthouse” via technology.[59]

What is more, distortions of court-generated information, floating around cyberspace and masquerading as “official” records can eventually risk bringing justice into disrepute. If a high court judge’s reputation can be called into question (as in Justice Cosgrove’s case), what can be said of precarious litigants or witnesses? It would therefore appear that an understanding of access divorced from considerations relating to the protection of litigants’ rights (including privacy), is irreconcilable with transparency and accountability—failing to achieve its purpose in light of technological change[60]—and therefore must be reconsidered.

B. A Brief Aperçu of the Relevant Normative Framework

Notwithstanding the noteworthy differences between paper records and their newer, “electronic” counterparts, courts by and large continue to evaluate the effects of access with the application of a traditional balancing test. In the scales of justice “access” and the “presumption of openness”, as traditionally understood, far outweigh privacy considerations[61]—as two recent reports on that point (one American, the other Canadian) confirm.[62]

While the objective here is not to thoroughly expose the applicable normative framework, it is nonetheless helpful to render a few of the fundamental principles. Seeking to comport with the imperatives of transparency (open court) and accountability, the starting point (in both the Canada and United States) is full access to court records. Not surprisingly then, litigants’ privacy interests are normally insufficient to overcome that rule. In short, “[T]he public’s right to transparent justice is an important constitutional rule and that it generally outweighs the equally fundamental right to privacy.”[63] Accordingly, the “presumption of openness” may only be refuted in very limited circumstances, primarily (but not limited to) young offenders, family matters, the protection of innocent third parties, interim publication bans, and in some cases confidential commercial information.[64]

At this juncture, it bears repeating that our objective is not to dispute the paramountcy of “transparent justice”, open court or accessibility, but rather, to take issue with a decontextualized construction of these concepts in the cyber context; particularly vis-à-vis the court’s duty to maintain control over its documents, and to protect the rights (including the right to privacy) of participants in the justice process.

The Canadian Judicial Council (“CJC”) and its American counterpart have—to their credit—recognized that the Internet impact disclosure and have addressed the issue in recent publications.[65] They predominantly maintain and import the traditional paper “presumption of openness” to the Internet context subject to a number of exceptions.[66] For example, the CJC report, for its part, does laudably recommend excluding personal data identifiers and certain personal information unless required for the disposition of the case in order to accommodate privacy interests.[67]

Unfortunately these redactions often come too late, since, according to the Model Policy for Access,[68] parties, who are themselves responsible for documents in the file, are not aware to ask for anonymization early enough in the process. Moreover, it is important to note that redactions of “personal identifiers” are often insufficient online, either due to context (i.e., in the case of a small town where one can easily be identified by background or circumstantial information alone) or as a result of the inefficiency of the redaction software.[69]

Far more importantly, the problem lies neither in the normative framework itself nor in the anonymization method, which can be improved.[70] Instead, there is a deeper underlying change needed—one to our understanding of privacy, and its relationship to access to justice and the exercise of judicial discretion.

Courts are held to protect the “discretionary privacy rights” of participants in the justice process even when that duty clashes with accessibility. They have broad powers to do so, including in cases “where the ends of justice may be subverted by disclosure or the information might be used for an improper purpose.”[71] Nevertheless, individual judges remain reticent to exercise this discretion and protect litigants’ privacy interests. This is presumably—at least in part—due to a culturally narrow understanding of privacy coupled with a perceived dichotomy between privacy and access, resulting in increasingly challenging and problematic situations.

Take, for instance, the Al Telbani case [72]. Mr. Al Telbani, a graduate student at Concordia University, was placed on Canada’s no-fly list and brought a lawsuit against the Canadian government. Although Transport Canada denied him access to evidence supporting their claim that he is an “immediate threat to aviation security”,[73] Mr. Al Telbani’s personal information was published for all to see, as per the “open court principle”, notwithstanding his request for anonymization.

Regardless of the outcome or merits of the pending case, it seems somewhat incongruous that a party to the case, Mr. Al Telbani himself, has thus far been denied seemingly necessary access to information that would permit him to refute the allegations levied against him; whereas strangers to the case—anyone for that matter—can, with the click of a button, retrieve data intimate to the plaintiff.[74]

Another case that stands out involves a Quebec woman infected with a sexually transmitted disease by a partner who allegedly lied or at the very best failed to reveal his carrier status.[75] The infected woman sued for damages in civil liability (tort). Due to the disturbing and humiliating nature of the sexual and medical details involved, the plaintiff asked the court to exercise its discretion to redact such information. She was denied on the grounds that it was not a family law but a private law (civil liability) matter and therefore not sufficiently “exceptional” to justify a publication ban (even though the plaintiff was not requesting a ban but merely de-identification).[76] It is worth mentioning that the facts were so egregious that SOQUIJ and other online databases voluntarily agreed to redact, even though they were at liberty to publish. Of course, as noted above, once one copy is released the “propagation problem” results in the coexistence of anonymized documents alongside unredacted versions. It is also noteworthy that just as in the Israeli case, the de-identification request was made late in the process; and, as has been previously seen, once the information is made available in cyberspace redaction is a virtual impossibility with control out of the hands of the courts.

When pitted against the open court principle, protecting litigants from consequences such as humiliation, embarrassment, or shame are looked upon with suspicion. This is again evident in various cases including the more egregious one of X v. Société Canadienne de la Croix-Rouge[77], where the court refused to permit a hemophiliac, infected with HIV, to use a pseudonym on the ground that to do so would “adopt a retrograde attitude toward [the] disease.”[78]

III. Rethinking Privacy, Access, and their Relationship to One Another

To what, then, might this reticence be attributed? As already noted, the answer may—at least in part—lie in our legal traditions’ very understanding of privacy. The following argues that aside from being plagued by problems of clarity (as Solove has eloquently argued),[79] the concept of privacy appears to lend itself to two distinct socio-juridical narratives: the first associated with the common law view and the second with its continental (or civil law) counterpart. Accordingly—and since privacy is undoubtedly “a highly mutable concept, both historically and culturally relative”[80]—comparative inquiry can expose what may be labelled a knee-jerk “balancing” of ill-defined values that no longer serves the intended rationale.

More specifically, in the common law tradition (which predominates in the United States and Canada), an individual’s right to privacy is generally assessed by reference to society’s conception of the measure of privacy that one is entitled to reasonably expect. That standard is particularly awkward with said expectations rapidly eroding, ironically due to social habituation to recurring intrusions.[81] More importantly perhaps, in contradistinction to its civilian counterpart, the common law tradition seems to place great emphasis on the territorial aspect of privacy, that is to say special “seclusion” or “aloneness” (in American parlance, “the right to be left alone”). In consequence, it is said that the Anglo-American tradition “carve[s] out space where law may intrude, and not further” (a so called privacy zone).[82] Focusing narrowly on territorial or proprietary notions of “seclusion” or both, as I have shown elsewhere,[83] derives from historically entrenched property-based reasoning that lamentably fails to capture the complexity of the privacy value in modern times and is therefore ill-suited to the cyber context.

Thus, North American scholars tend to embark on discussions of privacy with the origins of the invasion of privacy tort, born of a seminal article titled “The Right to Privacy”.[84] Though seldom addressed, the historical roots of that right in common-law England are particularly instructive. Under the English common law, the right to privacy was first recognized by virtue of its intricate link to personal property. This is best evidenced by the now infamous saying, “[T]he house of every one is his castle,” first coined by the House of Lords in Semayne’sCase (now colloquially known as “a man’s home is his castle”).[85] This alluded to the conception that a person’s right to privacy fundamentally derives from his property rights.[86] In view of that, the right to privacy was initially recognized in relation to trespass,[87] thus confirming what was, for many years, the reigning conception of privacy as rooted in ownership.[88] This brief historical aperçu at the very least elucidates the understanding of privacy as the right to be left alone in given spaces, defined externally rather than inherently to personhood.[89]

The tendency to associate privacy with property and aloneness may not lend itself as well beyond the “physical” world (i.e., in cyberspace). Bearing more directly on the online “privacy versus accessibility” debate, this narrow, spatially-based construction might—at least in part—be responsible for judicial reticence to attach greater weight to privacy in the cyber context, particularly when it appears prima facie to compromise the rightly-cherished but ill-defined value of access.[90]

What role might the notion of seclusion play when, to quote the Supreme Court of Canada in R v. Wise, “many, if not the majority, of our activities are inevitably carried out in the plain view of other persons”?[91] The view taken by civilian jurisdictions in this vein is particularly enlightening. In sharp contrast to what might be characterized as the common law’s libertarian—oftentimes rigid—vision of privacy, the civilian legal method, captivated by the French experience, favours a more flexible construction of actionable privacy infringements. Most importantly perhaps, privacy is considered to be a “personality right”—an idea central to the civilian tradition but alien to the common law. What that means succinctly is that privacy attaches to persons rather than property, irrespective of property or special constraints. In other words, “Personality rights focus on the être—the being—in contrast with the avoir—the having”[92] and are therefore divorced from territory. Central among these personality rights is privacy, which in turn is predicated on dignity.[93]

Conceiving the right to privacy as a personality right predicated on dignity and free of territorial constraints allows the civilian legal method to grasp privacy as a zone of intimacy delineated not by space or ownership but by the basic needs of personhood. Instead of deriving from property or being akin to seclusion, the civilian notion of privacy relates to moral autonomy and as such is encompassed by human dignity, which inheres in legal personality and is considered an extension thereof.[94]

The civil law tradition’s construction of privacy rights has been broad. Removed from the “reasonable expectations” doctrine, civilian jurisdictions’ principled approach to civil liability is better able to protect individual privacy[95] in intangible spaces (such as cyberspace), regarding certain dignity-based personality rights as inalienable. As previously noted, human beings enjoy personality rights including, but not limited to, privacy by reason of their very personhood, regardless of express statutory or jurisprudential intervention, spatial, or proprietary constraints. This is of great interest on point as a flexible interpretation lends itself to the protection of privacy in an era of constant technological and social change. Moreover, the dignity-based conception seems to better comport with Charles Fried’s relational understanding of privacy as “inherent to the notions of respect, love, friendship, and trust, and that close human relationships are only possible if persons enjoy and accord to each other a certain measure of privacy,”[96] than does an understanding clinging to the notion of isolation or seclusion.

As such, and for purposes of the discussion respecting paperless records, privacy may be construed as an ally of accessibility rather than adversative to it. It can therefore be more easily reconciled with both the court’s commitment to openness and with its responsibility to protect litigants and control its own records.

In other words, courts might construe safeguarding privacy as a means of encouraging participation in the justice system in an age when so doing exposes individuals to countless risks associated with internet access to their personal information. Additionally, it may be seen as a way of enabling courts to maintain essential control over their own materials. Consequently, it is not merely that the balance between transparency and privacy has tremendously shifted online[97]—it may be that safeguarding privacy can become a way towards ensuring access to justice and willingness to participate in light of the challenges of the Internet age.

Conclusion: Privacy as an Ally of Access

We are no longer dealing with an irreducible conflict between hopelessly opposed entities (privacy and accessibility) or pointed juxtapositions with no interactions between them. Instead, the duty to protect privacy can and must be construed as part of courts responsibility to maintain access to justice and prevent disinformation.[98]

Privacy is no longer about the right to be left alone. Instead, in this web-dependent age, privacy in the electronic court records context might ultimately be about the very access to justice we seek to protect. As already alluded to above, unbridled postings create the illusion of “access”. While third parties unrelated to the proceedings can easily collect the most intimate details concerning the litigants, witnesses, and others, participants are left unprotected; notwithstanding the court’s duty towards them. Not surprisingly then, sacrificing participants’ right to dignity and privacy in the justice process for the illusion of transparency, coupled with a significant loss of judicial control over how and what information is disseminated online, eventually risks fostering a disinclination to participate in the justice process. Thus, paradoxically, the very access to justice paperless records were meant to enhance, is undermined.

Perhaps the above-cited Quebec case, JL, best illustrates the point.[99] While the decision to publish details of a tort plaintiff’s sexually contracted disease may have—at first glance—appeared to constitute a victory for access and transparency, it stands to reason that so doing may dissuade similarly situated plaintiffs from availing themselves of the justice process (for fear of having intimate details exposed not only in dusty court files but online, easily googled by potential employers, landlords, even suitors, and so forth). Indeed, the ultimate result would be to deter access to the courts, thereby frustrating the goal of access in its broadest and most immediate sense.

In light of this difficulty, this article has exposed a distinction between the civilian and common law views of privacy in the hopes that comparative inquiry can inform the “paperless records” debate. As noted, the broader, dignity-based civilian construction enables us to reframe the debate between accessibility and privacy in the Internet context.

If privacy is more broadly understood as deriving from human dignity then it can be viewed as a facilitator rather than detractor of accessibility and comport with the court’s various duties (to foster transparency and to protect litigants and control its documents). In other words, judges would presumably be more inclined to use their discretion to protect litigants’ (and other participants’) privacy if doing so would not be regarded as sacrificing openness or transparency but rather as a facilitator of access and enabler of court control over its records. Those litigants and witnesses who are confident that their personal information will not be indiscriminately exposed, surely have greater incentive to participate in the justice system than those dreading humiliation, intimidation, or retribution that not even the court itself can manage.