Column

Reputational Harm of Legal Blogging

No, not the author’s reputation. The subject’s.

In early December, the Americans celebrated legal blogging with the ABA Journal Web 100, and on December 31st, Canada did likewise with the 2017 Clawbies. In between, the Office of the Privacy Commissioner of Canada (OPCC) posted a summary of submissions received in its ongoing study into the privacy issues surrounding Online Reputation. Legal blogging wasn’t explicitly mentioned, but it’s hard to see how the subject can be avoided.

The original consultation document notes that “dating sites, sites that re-post court and tribunal decisions, and, overwhelmingly, the so-called revenge and shaming sites” account for “over half of complaints and inquiries the OPCC has received to date about non-consensual posting of personal information.” Regarding “sites that re-post court and tribunal decisions,” search Slaw or Google for stories on Globe24h and you get a good sense of the concern. As the OPCC explains, Globe24h obtained “Canadian decisions by scraping a legitimate online court record repository” and “allowed its reposted decisions to be indexed by search engines that surfaced personal information in response to searches on individuals’ names. The site then charged individuals a fee to have their personal information taken down.”

At this point, you might reasonably comment that legal bloggers do not engage in such behaviours, nor are their purposes as vile. But in referencing its 2015 finding that Globe24h had violated the privacy rights of the individuals and the norms of Canadian legal publishing, the OPCC underscores that the purpose and therefore the legality of reproducing personal information found inside a court decision is a different question from that of the reputational harm that can befall a named individual:

In our view, there is a significant difference between making court and tribunal decisions available online so that they are accessible to those who wish to consult past precedents and hold decision-makers accountable, and making those decisions – and their contents – indexable by popular search engines and available to anyone simply querying about another individual. As noted by the complainants in this case, indexing of court and tribunal decisions by search engines can provoke significant reputational harm and embarrassment to individuals by needlessly exposing sensitive personal information to inadvertent discovery. (emphasis added)

The reputational harm, which one presumes the potential for which begins with the inclusion of the sensitive information in the judgment, is exacerbated by the exposure of the cases and posts about the case to search engines and then, ultimately, from the discovery.

So, short of not blogging about case law and not allowing our blogs to be indexed by Google and other search engines, what do we do?

  • When we blog about case law, how much personal information are we including?
  • Even if we use impersonal pronouns to describe the parties, would simply using the proper case name be sufficient to expose the content in search given Google’s ability to understand how multiple documents relate to the same subject?
  • Do we develop protocols that differentiate between high profile individuals, important legal matters and matters concerning the private interests of regular folk when deciding who to name and how much to promote our blog?
  • Should we get in the habit of redacting or initializing names when we reproduce paragraphs?
  • Do we publish within the bounds of the law, and act only where an explicit privacy complaint arises?

Beyond law blogging, the there are countless ways private information appears and disseminates online, hence the OPCC concern with reputational harm. As it states in its December 20th summary, discussion of a European-style “Right to be Forgotten” online was “by far the most popular topic in the submissions.” Not to suggest that everyone was pushing for that. Quite the opposite, in fact, as many submissions apparently referenced freedom of expression and freedom of the press, and focused on the opportunities available to apply existing laws or use enhanced versions of “defamation law, privacy torts, website takedown policies, and PIPEDA’s framework for the management of personal information.”

With so much public benefit from law blogging, we certainly shouldn’t stop. But perhaps we should be cautious.

When it comes to the potential reputational harm of your subjects, what are your “best practices” when blogging?

_____________________

Disclosures:

  1. As former CanLII CEO (2011 – 2015) and thus connected to the topic in many ways, including through direct dealings with Globe24h, and through the conception, launch and promotion of cooperative law blog CanLII Connects. I’ve been an avid promoter of open access to law and of law blogging, and I’ve been on the receiving end of scores of calls, emails and letters from people with serious concerns about the appearance of their personal information in Canadian court decisions and summaries.
  2. As current CEO of Compass / vLex Canada, I’m still regularly engaged by these topics, having blogged, presented and been interviewed about them throughout 2017; and am currently on the receiving of a complaint to the OPCC from an individual concerned about a vLex Canada case headnote found following a Google vanity search.

Comments

  1. Dear Sir

    What benefits are there known to have been, for whom, from law blogging?

    Yours Sincerely

  2. Find something to write about that no sensible person (or person wanting to be considered sensible) wants to read or acknowledge having read. For example, I usually blogged about something that put human readers to sleep immediately and robot indexers nanoseconds later.

  3. The OPCC has just released a draft “Position on Online Reputation”
    https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/consultation-on-online-reputation/pos_or_201801/

    Among other findings:

    “With respect to de-indexing, the OPC is of the view that PIPEDA applies to a search engine’s indexing of online content and display of search results. As such, search engines must meet their obligations under the Act.

    This includes allowing individuals to challenge the accuracy, completeness and currency (the extent to which the information is up-to-date) of results returned for searches on their name.”

    With respect to the “Effectiveness of de-indexing”:

    “Some have argued that de-indexing is an ineffective remedy, since the underlying content remains available online. In our Office’s experience from past investigations, there is a difference between having information available to those who explicitly seek it out directly from source websites for specific purposes (for example, a lawyer doing jurisprudential research in CanLII or a journalist seeking out past articles on a given issue), and, the same information being “stumbled upon” or “fished out” by a snooping friend, colleague, neighbor or other acquaintance through a simple query search by an individual’s name. The OPC believes that removal of links from search results in the limited circumstances identified above will have a significantly positive impact, even where the source information remains.”

    The above paragraph is supported by footnote 22, which reads as follows:

    “For instance, in the Globe24h.com matter, complainants to our office were not primarily concerned that their sensitive personal information existed in court and tribunal decisions published online. They were concerned when those decisions were copied and reposted in a manner that made them accessible through searches for their names in search engines: see A.T. v. Globe24h.com, 2017 FC 114.”

Leave a Reply

(Your email address will not be published or distributed)