CCCT Court Web Site Guidelines – Some Complexities Underlying Court Web Sites – Privacy v. Public Access to Court Information

A few days ago, I presented the issue of copyright & licensing of information found on court web sites. In this post, please find – please feel welcome to comment! – our draft on the topic of “Balancing Privacy and Public Access to Court Information: The Need for Confidentiality Rules”. Essentially, our recommendation on topic is to follow the Canadian Judicial Council Model Policy on topic.

The growing unease with court-related, internet, search engine powered access to web site information was well framed in a 2008 comment to a slaw.ca blog post about anonymization of parties’ names:

Having an open court today is different than in the past when there were no electronic databases. Previously, in order to see a judgment, a person had to go to the court or to a law library. In some parts of Canada, this meant having to get to another town (thinking of my very small hometown, you’d have to drive for hours to get to a public law library). And then you’d have to have a librarian help you find the case. This meant that, other than lawyers and judges, only those who were exceptionally keen would get the information. Now, all you have to do is punch in some names in a free database and ta da! All your information is there for anyone to see. How fair is it, really, that everything done in a trial can be found by any Joe or Jane Doe just because they felt like it. Some of the information provided by a judge in their judgment is totally irrelevant. I have seen judgments where a parties’ banking account information has been provided! Why should that be available for all to see? We need to rethink how the web changes such things and if we really need all the information we say we do.

The issue of balancing the right of the public to open courts with the right of an individual to privacy was tackled in 2003 in a discussion paper by the Canadian Judicial Council Judges Technology Advisory Committee (JTAC) titled “Open Courts, Electronic Access to Court Records, and Privacy”. The JTAC later built on this discussion paper and published, in 2005, a “Model Policy for Access to Court Records in Canada”.

This Model Policy reduces the issue of access to court information in a few simple access rules, effectively achieving a recommended balance between the right of the public to open courts with the right of an individual to privacy. The CCCT recommends the application of this Model Policy to court web sites, including the recommendation about preventing indexing and cache storage of judgments from web robots and search engines.