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Immovable Object, Meet Irresistible Force

For over 30 years, every Canadian law student has read these words:

Mr. Pettkus and Miss Becker came to Canada from central Europe, separately, as immigrants, in 1954. He had $17 upon arrival. They met in Montreal in 1955. Shortly thereafter, Mr. Pettkus moved in with Miss Becker, on her invitation. She was thirty years old and he was twenty-five. He was earning $75 per week; she was earning $25 to $28 per week, later increased to $67 per week.

To protect their privacy interests, is it too late to re-style the case P (L) v. B (R)?

I ask this question because we at CanLII regularly receive requests (occasionally accompanied by promises of legal action) from people named in decisions to remove, redact or otherwise obscure the information to protect their privacy or the privacy of their children. They do not want their most painful moments or their dirty laundry topping the list of a Google search of their name. It is not inconceivable that the next request could come from Mr. Pettkus.

On occasion we also receive calls from the Courts in circumstances where they have been alerted, for example, that someone’s divorce decision has shown up on a Google search. Whether we hear about the concerns directly or indirectly, a review of the underlying case often reveals anonymization was requested and expressly rejected.

Can you un-ring a bell?

Pettkus v. Becker, [1980] 2 SCR 834 is a foundational case on the concepts of unjust enrichment and constructive trusts, particularly in the context of domestic partnerships. Cited, as of June 2012, by Canadian courts in 880 decisions appearing on CanLII, its influence continues apace. The day after Pettkus v. Becker was argued, the case was reported in the Ottawa Citizen under the headline: “Supreme Court to decide on divorced women’s property rights”. While headlines may have varied, details of the case were no doubt widely reported across the country at the time and in countless academic and professional publications ever since.

As is common in family law matters, the personal details of the litigants in this case are laid bare, touching not only on financial and property matters, but also on behaviours, personal relations and allegations of physical abuse (which, interestingly, were mentioned in the SCC decision and not in the judgment below).

Needless to say, through the awareness of the case and the widespread availability of the details – including, as shown, in contemporaneous press reports – it is too late to put the privacy genie back in the bottle for Lothar Pettkus and Rosa Becker. But for family decisions falling short of this level of notoriety or influence, is it desirable to attempt to un-ring the bell in the name of privacy protection through ex post facto anonymization of family law decisions?

The end of “practical obscurity” and new implications to “open court” 

Over recent decades as law inexorably moved from print to digital and from “reported” to a state where effectively all cases are reported, “practical obscurity”, as some have called it, associated with limited access to legal decisions is no longer assured. You could argue that the pursuit of “practical obscurity” was always inconsistent with the open court principle, but, now lost, does that mean any hope of widespread protection of privacy for litigants has been lost with it?

Litigants, in family matters or otherwise, can seek publication bans or request that a Court require that reporting of cases be done with initials only. In circumstances where none of the many statutory directions to preserve anonymity apply, the Court must balance the interests of the parties against the imperative of open courts so that justice may be seen to be done.

A.B. v. Bragg Communications Inc., 2011 NSCA 26 offers a good summary of the open court principle and its application in family matters. For purposes of this column, I will draw on one part of that summary:

[74] The application of the open court rules to family law matters, where privacy concerns are often paramount, was considered in one of the earliest articulations of the open court principle. Almost a century ago in Scott v. Scott, [1913] A.C. 417, the House of Lords gave strong effect to the open court rule in the context of a matter arising under the Divorce Act. Lord Atkinson recognized the privacy concerns which arise in divorce and matrimonial cases, but nevertheless re-affirmed the public interest in open court proceedings. He said at p. 463:

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

Immovable object, meet irresistible force 

The open court principle is, and should be, an immovable object in the service of the administration of justice. Protection of personal privacy interests may not yet be an irresistible force, but momentum is undoubtedly building.

While it may be hard to tell from the non-stop “voluntary” sharing of personal information through Facebook, Twitter, Tumblr and the like, we have never been more collectively concerned about the protection of personal privacy. In a prior Slaw post, David Canton directs our attention to a December 2011 op-ed from the Ontario Privacy Commissioner that succinctly captures why we are, or should be, concerned. The op-ed states, in part as follows:

In this day and age of 24/7 online expanded connectivity and immediate access to digitized information, new analytic tools and algorithms now make it possible, not only to link a number with a name, but also to combine information from multiple sources, ultimately creating an accurate profile of a personally identifiable individual.

One month later, a unanimous Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 recognized the tort of “intrusion upon seclusion” and alluded to the guardian role of the Courts and the common law to “evolve” in the manner in which it protects privacy rights.

[67] For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. […] As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order. [emphasis added]

Where do we go from here?

No answers from me following this cursory overview (indeed, I’ve only spoke of published decisions and haven’t weighed in on electronic access to court dockets or on reporting on in-progress matters), but I would like to hear your thoughts.

  • Does the current model where adjudicators address the issue on a case-by-case basis suffice?
  • Should all courts pursue a Quebec model where effectively all family cases are anonymized?
  • Does anonymization of the published judgment matter if the court file remains accessible?
  • What other considerations are relevant?

I look forward to your comments and insights.

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Comments

  1. Melanie Bueckert

    For those looking for further background in this area, I would suggest the following three starting points:

    1. Karen Eltis’ Courts, Litigants and the Digital Age: Law, Ethics and Practice, plus her other publications on this subject;
    2. Chief Justice McLachlin’s article, “Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003) 8 Deakin L Rev 1; and
    3. The Canadian Judicial Council’s “Use of Personal Information in Judgments and Recommended Protocol“.

    To what extent has the CJC’s Protocol been adopted in your jurisdiction? I know in Manitoba it seems as though the process is still quite ad hoc, and very much left up to the discretion of individual judges. The CJC has quite clearly placed the onus on judges to craft decisions that reveal as little personal information as possible, so that the open courts principle can be upheld without unduly airing people’s ‘dirty laundry’. However, as noted above, for all other court materials, the responsibility for personal information protection rests with the party filing it. This seems highly unusual given the adversarial nature of our system.

    My tentative answers to the foregoing questions are:

    1. I believe that, in the wake of the CJC Protocol, judges have by and large stopped including obviously unnecessary personal data in judgments. However, it may be preferable to have one person in each court review judgments in order to ensure uniformity in the level of personal information included.
    2. I’ll answer this question with a question – so long as the legal principles underpinning the decision are clear, what purpose is served by ‘onymous’ family law decisions? Do we need to know the names of the parties – is that what the open courts principle is meant to achieve?
    3. Anonymization of the judgment is still important, but if the court file is readily accessible on the internet (and indexed by the big search engines), then it will not really make a difference. If access to the court file must be undertaken in person, or for the payment of the fee, that may make a difference.
    4. The primary consideration is obviously the ‘proliferation’ problem Eltis identifies – once information is available on the internet, it is well nigh impossible to remove it. This consideration, taken in conjunction with the reality of the multiplicity of parties involved in every court file, must inform our ongoing approach to these issues. ‘Free versus fee’ access must also be borne in mind.

  2. Hi Melanie,

    Thanks for engaging with the topic and for the added references.

    I read the Eltis book this past winter (it’s still sitting on my desk, in fact) and definitely had this excellent text in mind as I wrote the piece. The CJC Protocol should be required reading for anyone interested in the topic, but as you note, the ad hoc nature of its adoption suggests it may not be as widely read as some might hope.

    Your comment on proliferation is spot-on. As John O’Sullivan’s timely Slaw post “Juries and the Internet” makes clear, unless we take measures to address how much information and at what level of detail we are comfortable placing in public view in the first place, we may be faced with situations that call for extraordinary, and potentially troubling, measures to manage information later on.

    This particular speech from the Chief Justice is new to me, but it is excellent and it really captures well why we treat the open court principle as an immovable object as well as the tension between that principle and our privacy interests. Delivered in 2003, the speech comes from an era when PIPEDA was new and relatively untested and when YouTube, Facebook, Twitter were not even conceived (and even MySpace was still a few months from launch!). Thank you for including the link.

    Colin

  3. Luc André Vincent

    Other relevant references may be of interest in the CJC under the News and Publications tab and Technology Issues sub tab all of which might raise the opportunity of an needed updated comprehensive approach to Open Courts in Canada.
    I would answer no to all three questions and add for consideration the latest European Privacy Directive proposal – “droit à l’oubli” in particular.
    One of my problems with anonymization under family law is that it does not bear any comprehensive test of coherence along all “material world” publication policies or rights of all privacy sensible fields of law such as criminal but even more so administrative decisions such as rent tribunal and social welfare.

  4. Salut Luc André,

    Good to hear from you and thanks for contributing. You make an excellent point that as the issue goes well beyond family law, any solutions with such limited application do nothing to address the broader issues of balancing open courts and privacy (including “droit à l’oubli”). To use just one example, I note that nearly 50,000 decisions (from 2011 alone!!) of the Régie du logement are readily available online at jugements.qc.ca – with all names and details present.

    In addition to Canadian and European debates on this subject, we can also look south. Personally, I’m looking forward to this presentation at the coming 2012 Law Via the Internet conference this October at Cornell University in Ithaca, NY.

  5. I don’t have a comment, per se, but more of a contribution to the discussion by way of a recent NSCA decision directly addressing the “open court” principle and privacy concerns of litigants in the context of family law litigation:

    http://canlii.ca/en/ns/nsca/doc/2012/2012nsca83/2012nsca83.html

    Cheers
    Tim

  6. Thanks, Tim.

    A good and timely add. Paragraphs 97 and 98 of that decision provide a good, plain-language sense of the question of balance:

    [97] I agree with the judge that the respondents’ preference for personal and financial privacy, and to be free from embarrassment during their divorce is insufficient, in this case, to constitute a serious risk to an important public interest which outweighs the deleterious effect of confidentiality, under the principles from Dagenais, Mentuck and Sierra Club. I refer to the passages from Scott, MacPherson and Edmonton Journal, quoted above, and to M.E.H. v. Williams, para 25.

    [98] That is not to say that a divorce file never may be subject to a partial or complete sealing order. I refer to the examples in the authorities set out earlier (para 33) that discuss various gradations of confidentiality orders. Such an order would require evidence that establishes a serious risk of harm beyond mere embarrassment, particularly but not exclusively where children are involved, and the inadequacy of alternative measures to alleviate that risk. Here, that identified risk is identity theft, and there is no evidence that a partial publication ban or redaction would inadequately protect the respondents from any risk of identity theft.

    As the Supreme Court is set to release it ruling tomorrow in the A.B. v. Bragg case I mentioned in the original article, we will no doubt have even more to talk about on this topic. Interpretation of the Dagenais/Mentuck test and application of the open court principle go to the heart of the case. See, for example, the Appellant’s factum.

    Smarter and better informed people than I will no doubt offer useful analysis within hours (minutes?) of the publication of the decision. I look forward to reading it here and and elsewhere.

    Colin

  7. Hi Colin,

    A post-decision release comment — my thoughts are that the SCC has now cleared substantial roadblocks to future anonymization attempts in AB v. Bragg, 2012 SCC 46.

    While the decision itself can be narrowed to its highly favourable facts (youth being sexually harassed = highly sensitive scenario!) it does lay the groundwork for easier anonymization mechanisms.

    For example, the decision removes the age-old antipathy courts had against ‘privacy’ concerns as justification for limitations on open justice. Not being able to assert ‘privacy’ as a general basis of concern was problematic for online anonymization policies. While you can come up with types of cases that should be anonymized (family law cases are one such generally accepted context) because they are likely to lead to serious non-privacy related harms (financial, etc.), being able to assert privacy as the touchstone and organizing concept for the harms is a very helpful step in the direction of a more consistent approach.

    Secondly, where the old jurisprudence required showings of specific harm under rigid evidentiary standards, the SCC now allows for generalized, ‘feature based’ demonstrations of harm that are not limited to the specific cases. For example, Madam Justice Abella points out that there is ample evidence that ‘youth privacy’ is categorically vulnerable. You no longer need to prove that on a case by case basis. As you note, this now allows for a move away from ‘case by case’.

    Third, the Court also takes a swipe at the long standing position that if you are not willing to air your laundry in public, you simply have to bear your wrong (and the stench of your dirty laundry, I suppose) in private. For example, the Court held there is evidence on the record that fear of re-victimization is a strong impetus for under reporting in cyber bullying contexts/categories.

    Removing these obstacles, I think, makes the online anonymization task eminently easier, legally.

    Unfortunately, none of this will help your Miss Becker as there is a serious procedural flaw that needs to be remedied when anonymizing ex post. The problem is, simply put, that courts deem themselves functus once the decision is issued, so it is not clear they have the jurisdiction to anonymize decisions retroactively, when it comes time to put them online.

    Best,
    Tamir

  8. Hi Tamir,

    Thanks for the insights. I’ll leave it to others to predict how the law will develop as courts interpret 2012 SCC 46 in future cases, but I agree that irrespective of the narrow facts supporting the ruling that we can expect to see it argued in just about every case where the open court principle and privacy interests collide.

    Where I’m less certain is about how things could play out regarding ex post redaction/anonymization and a court’s capacity to exert authority over the publishable content of a decision even years after the fact. Ask a large enough group of judges who holds copyright decisions and on unpublished reasons for judgement and you are likely to get (at least) four different answers:

    1) no one – it’s public domain
    2) the court
    3) her majesty in right of Canada or in right of a province
    4) the individual judge or adjudicator who wrote it

    To be clear, I’m not arguing that a court (or government) can or should issue a blanket directive to anonymize cases, I’m just not sure they would see themselves as lacking authority to do so.

    Consider also that it is not unusual for court administrators to exercise, or to seek to exercise, control over the terms of republication of material already online. You need only look at the terms of use page of just about any court website to see the potential for the court, should it wish, to add more restrictive terms. (enforcement is another issue, of course)

    Colin

  9. Hi Colin,

    I fully agree with you, however CIPPIC has run across this issue in the past, where a Court refused to alter the text of a past judgement to anonymize it because it felt it no longer had judicial authority over it. (We have also, BTW, had cases where judges took the opposing view — that they _did_ have jurisdiction to alter the text of an issued decision ex post).

    As a frame of reference, take a look at Rule 81 of the SCC Rules:

    Amending Judgment

    81. (1) Within 30 days after a judgment, a party may make a motion to a judge or, if all the parties affected have consented to amend the judgment, a request to the Registrar, if the judgment
    (a) contains an error arising from an accidental slip or omission;
    (b) does not accord with the judgment as delivered by the Court in open court; or
    (c) overlooked or accidentally omitted a matter that should have been dealt with.
    (2) The judge on a motion under subrule (1) may dismiss the motion, amend the judgment or direct that a motion for a re-hearing be made to the Court in accordance with Rule 76.
    SOR/2011-74, s. 34.

    If you’re interested, would be happy to discuss in more detail via Email.

    Best,
    Tamir

  10. Sorry, I should add – and you’re likely well aware of this — most online publishers of copies of judicial decisions (including those websites actually operated by the Courts themselves) will not anonymize upon request if it means their version of the judgement will not reflect the original decision.