McGill Law Journal ~ Revue de droit de McGill
THE JUDICIAL SYSTEM IN THE DIGITAL AGE:
REVISITING THE RELATIONSHIP BETWEEN PRIVACY
AND ACCESSIBILITY IN THE CYBER CONTEXT
Karen Eltis*
Despite technologys reach into all parts of
social life, its effects on the judiciary have been
under-theorized. The Digital Age, and unfet-
tered usage and access to digital information,
will have untold effects on core values of judicial
independence, impartiality and the delicate
balance between privacy and the open court
principle. Technologyas well as the dramati-
cally increased availability of information of all
kinds and qualityis distorting the judicial
process and its outcomes. It is of primary im-
portance, therefore, to identify the broad issues
that emerge from the growing use of technology,
and to provide a theoretical basis for adjudicat-
ing the ongoing tension between privacy and
transparency in the judicial setting. Too often
the judiciary pits privacy against the open
court principle and accepts a culturally narrow
view of what constitutes privacy and how it af-
fects the judicial process. In particular, this ar-
ticle investigates the effects of online court
documents to establish why, despite the current
preference for openness and transparency, a
contextualized understanding of privacy is de-
sirable. Indeed, if we rethink privacy within the
cyber context, it can be considered an ally of
openness in the court system.
et
La
technologie,
les valeurs
Malgr la prsence de la technologie dans
tous les aspects de la vie sociale, ses effets sur le
systme judiciaire sont sous-thoriss. L re
digitale , laccs linformation numrique et
son utilisation sans entraves auront des effets
indits sur
fondamentales de
lindpendance judiciaire et de limpartialit,
ainsi que sur lquilibre dlicat entre le respect
de la vie prive et le principe de la publicit des
dbats.
lnorme
augmentation de la disponibilit dinformation
de nature et de qualit varies, dforme tant le
processus judiciaire que ses rsultats. Il est
donc dune importance primordiale didentifier
les grands enjeux qui ressortent de lutilisation
croissante de la technologie et dlaborer un
fondement thorique pour examiner la tension
continue entre le droit la vie prive et la
transparence en milieu judiciaire. Il arrive trop
souvent que lappareil judiciaire oppose le droit
la vie prive au principe de la publicit des
dbats et accepte une vision
culturelle
restreinte de ce que constitue le droit la vie
prive et son impact sur le processus judiciaire.
Plus particulirement, cet article tudie les
effets de linformatisation des documents des
tribunaux pour dterminer pourquoi une
comprhension contextuelle du droit la vie
prive est dsirable, et ce, malgr la prfrence
actuelle pour louverture et la transparence. En
effet, si nous reconcevons le droit la vie prive
dans le contexte lectronique, il peut tre
considr comme un alli de la transparence
dans le systme judiciaire.
* Associate Professor, University of Ottawa Faculty of Law, Section de droit civil; Visit-
ing Scholar, Columbia Law School; Past Senior Adviser, National Judicial Institute.
Citation: (2011) 56:2 McGill LJ 289 ~ Rfrence : (2011) 56 : 2 RD McGill 289
Karen Eltis 2011
290 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
The Impact of Technology on Courts and the Judiciary:
An Overview
Why Does Technology Matter? The Effect of Online Court
Documents on Litigants and Non-Judicial Participants
A. Paper Versus Net
B. A Brief Aperu of the Relevant Normative Framework
III.
Rethinking Privacy, Access, and their Relationship to One
Another
Conclusion: Privacy as an Ally of Access
291
292
301
303
306
311
315
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 291
Introduction
It seems as though everybody is talking about
privacy, but it is not clear exactly what they are
talking about
Daniel J. Solove1
Technology plays an incontrovertibly central role in contemporary ju-
dicial 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 rele-
vance, the question of technologys 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 be-
tween 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, par-
ticularly, the inadvertent disclosure of personal information in ways un-
anticipated by existing rules, and the resulting affront to the very access
to justice that digital files were meant to promote. Canadas Privacy
1 Understanding Privacy (Cambridge, Mass: Harvard University Press, 2008) at 5 [So-
love, Understanding Privacy].
2 C.f. Daniel J Solove, Fourth Amendment Codification and Professor Kerrs Misguided
Call for Judicial Deference (2005) 74:2 Fordham L Rev 747. (Solove observed that
many judicial misunderstandings stem from courts trying to fit new technologies into
old statutory regimes built around old technologies at 773).
3 See R v Lipp, [1991] 2 SCR 114 at 137-38, 64 CCC (3d) 513. Lamer CJC, as he then
was, defined judicial independence as independence from the government, but inter-
preted government broadly enough to include any person or body, which can exert
pressure on the judiciary through authority under the state (ibid).
4 See The Honourable Mr Justice T David Marshall, Judicial Conduct and Accountability
(Scarborough: Carswell, 1995); Martin L Friedland, A Place Apart: Judicial Independ-
ence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995).
292 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Commissioner pointed to this emerging predicament, indicating, The
open-court rulewhich is extremely historically importanthas 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 cru-
cial area previously unexplored in Canadian legal literature, this paper
will adopt the following structure: Part I will provide a general introduc-
tion 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 IIIwhich develop the questions
of electronic court records, access, and privacyinto a wider fabric of re-
flection. Part II will then turn to online court documents more pointedly,
explaining why the current presumption in favour of openness yields un-
satisfactory results in light of technological change. It will proceed with an
exploration of the issues surrounding the balance between the judicial
systems 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 infor-
mation, rather than relevance or quality, this article, in Part III will then
posit an understanding of privacy in this contextas 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
worlds 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 gov-
ernment proposal to monitor federal judges electronic communications
5 Kirk Makin, Online Tribunal Evidence Leaves Citizens Data open to Abuse The
Globe and Mail (20 August 2008) A5.
6 See generally Karen Eltis, The Impact of New Technologies on Courts and Judicial
Ethics: An Overview in Lorne Sossin & Adam Dodek, eds, Judicial Independence in
Context (Toronto: Irwin Law, 2010) at 337 [Eltis, Impact of New Technologies] (de-
tailed analysis of how technology affects judges and judicial ethics in particular).
7 Drawn from the broader dignity-based civilian understanding of privacy.
8 The Judicial Conference of the United States is the principal policy-making body for the
federal court system. The chief justice serves as the presiding officer of the Conference.
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 293
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
9 See Judicial Conference of the United States, Report of the Proceedings of the Judicial
Conference of the United States, (Washington, DC: Administrative Office of the US
Courts, 2001), online:
2001]. I have argued elsewhere that email eavesdropping presents novel challenges
that need to be addressed with the Charter in mind: Karen Eltis, La surveillance du
courrier lectronique en milieu du travail: le Qubec succombera-t-il lapproche
amricaine? (2006) 51:3 McGill LJ 475 [Eltis, La surveillance du courrier lectro-
nique]; See also Karen Eltis, The Emerging American Approach to E-mail Privacy in
the Workplace: Its Influence on Developing Caselaw in Canada and IsraelShould
Others Follow Suit? (2003) 24:3 Comp Lab L & Poly J 487 [Eltis, Privacy in the
Workplace].
10 See Robyn Weisman, Judges Battle to Limit Workplace Monitoring, Newsfactor (21
September 2001), online:
Monitoring, CNET News (10 September 2001), online:
ciary to End Workplace Monitoring, Epic Alert 8:16 (6 September 2001) online:
11 See Gina Holland, Panel Endorses Monitoring of Judges, The Washington Post (13
August 2001) online:
of the US Courts, News Release, Federal Judges Issue Internet Use Policy for US
Courts (13 August 2001), online: Electronic Frontier Foundation
dicial Policy Board Votes by Mail on Web Monitoring, Government Technology (18 Sep-
tember 2001) online:
12 See Hardeep Kaur Josan & Sapna K Shah, Internet Monitoring of Federal Judges:
Striking a Balance Between Independence and Accountability (2002) 20:1 Hofstra Lab
& Emp LJ 153 at 158:
The aim of the Initial Policy is twofold: (1) to secure the courts computers by
protecting them from viruses and hackers and (2) to ensure that employees
[including the judges themselves] do not waste time browsing the Internet
for leisure.
But further on Josan & Shah noted:
Most critics were outraged with the proposed policy that all judiciary em-
ployees, including judges, must waive all expectations of privacy in commu-
nications made when using office equipment, including computers.
Judges have criticized the monitoring on grounds that it is an invasion of
privacy and that it may violate the [Electronic Communications Privacy Act]
ECPA (ibid at 160 [footnotes omitted]).
Eventually a more moderate position emerged, see Judges Ease Surveillance of Web
Use The New York Times (20 September 2001) online:
294 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
manifest violation of the separation of powers between the judiciary and
the legislature, and indeed of institutional independence.13
The federal judiciarys 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 com-
puters is no longer unprecedented and therefore must be soberly ad-
dressed.15 Moreover, since technology creates new criteria for measuring
13 Judicial independence also significantly refers to institutional independence: see
Beauregard v Canada, [1986] 2 SCR 56, 30 DLR (4th) 481. On the separation of powers
and the judicial branch generally, see Cheryl Saunders, Separation of Powers and the
Judicial Branch, online: (2006) 11:4 Judicial Review 337
specifically, in the Canadian context, s 11(d) of the Charter, seeking to guarantee a fair
hearing by an impartial and independent tribunal, encompasses a constitutional pro-
tection against judicial bias. Independence refers to freedom from interference of the
executive or legislative branch. This aspect does not concern us at present because it re-
lates to the tribunals institutional, administrative, and fiscal independence, rather
than that of individual judges: see generally Valente v R, [1985] 2 SCR 673, 24 DLR
(4th) 161.
In the United States, guidelines were later adopted in this context: see Administra-
tive Office of the US Courts, News Release, Judicial Conference Approves Recommen-
dations on Electronic Case File Availability and Internet Use (19 September 2001),
online: US Courts
Report 2001, supra note 9 at 43 (Use of Internet). For a more detailed discussion of
this report, see Josan & Shah, supra note 12.
14 See Philip L Gordon, Judge Leads Fight for Workplace Privacy The Denver Post (20
September 2001) B-07, online:
15 See Michael Geist, Computer and E-mail Workplace Surveillance in Canada: The Shift
from Reasonable Expectation of Privacy to Reasonable Surveillance (Ottawa: Canadian
Judicial Council, 2002) at 41, online: Canadian Judicial Council
nology Security: A Report of the Judges Technology Advisory Committee to the Cana-
dian Judicial Council (30 November 2001) at Table 2-7:
62 percent of respondents indicated that log-in and account activity by judges
or judicial staff was monitored 29 percent of respondents indicated that dial-
in and e-mail usage by judges or judicial staff was monitored 33 percent of
respondents indicated that Internet usage by judges or judicial staff was
monitored.
He then noted:
The data was particularly troubling in light of responses regarding the ade-
quacy of notice and implementation of computer and e-mail monitoring. Only
50 percent of respondents indicated that they had been informed that their
computer activities may be monitored, only 33 percent of users were required
to sign an Appropriate Use Agreement before receiving access to the com-
puter system, and a paltry 5 percent of respondents indicated that their
opening log-on screen clarified the expected use of the computing equipment
by judges and judicial staff. Furthermore, with only 14 percent indicating
that the judges or judicial staff are involved in the monitoring activity, it be-
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 295
judicial productivity, judicial dockets can be monitored with great ease,
and expectations of judges workload and performance can vary as a func-
tion 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 re-
lated 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 publicwith 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 indis-
criminate access. Individuals gain access to sensitive, personal informa-
tionoftentimes anonymouslyin an unprecedented fashion. What is
came apparent that the judiciary was not involved in the implementation as-
pect of the monitoring activities (ibid at 42 [footnotes omitted]).
16 See Canadian Judicial Council, Computer Monitoring Guidelines, (Ottawa: Canadian
Judicial Council, 2002) at paras 3-4, online: Canadian Judicial Council
ing Guidelines]:
[3] As an overriding principle, any computer monitoring of judges, and judi-
cial staff who report directly to judges, must have a well defined and justifi-
able purpose that does not encroach on deliberative secrecy, confidentiality,
privacy rights or judicial independence.
[4] Content-based monitoring of judges and judicial staff is not permissible
under any circumstances. Prohibited activities include keystroke monitoring,
monitoring e-mail, word processing documents or other computer files, and
tracking legal research, Internet sites accessed, and files downloaded by in-
dividual users.
17 See generally Geist, supra note 15.
18 For example, see the guidelines set out by the Canadian Judicial Council: Canadian
Judicial Council, Model Judicial Acceptable Use Policy for Computer Technology, (Ot-
tawa: Canadian Judicial Council, 2003) in Canadian Judicial Council, Blueprint for the
Security of Judicial Information, 2d ed (Ottawa: Canadian Judicial Council, 2006) at
66, online: Canadian Judicial Council
19 United States v Moussaoui, 483 F (3d) 220 (4th Cir 2007) (available on WL Can) [Mous-
saoui].
296 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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 tradi-
tional standards of disclosure to the World Wide Web can and has pro-
duced unfortunate by-products ranging from identity theft to witnesses
being threatened by external parties. These parties, by virtue of the me-
dium 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
20 See Canadian Judicial Council, Model Policy for Access to Court Records in Canada,
(Ottawa: Judges Technology Advisory Committee, 2005), online: Canadian Judicial
Council
[Model Policy for Access]. See also Rebecca Fairley Rainey, The Jury is Out on Online
Court Records, Online Journalism Review (25 January 2002) online:
Judicial Conference and the California Judicial Council in which certain restrictions
were placed on online posting of court records with a particular focus on limiting the
personal information available in electronic versions of court records. According to
Rainey, The reasoning, in both policies, is that releasing records to a broad audience on
the Internet would expose plaintiffs, defendants and jurors to the risk of identity theft
through the publication of the extensive personal information collected in civil proceed-
ings (ibid).
21 Apprehension of incidents of this very nature prompted Canadas Judges Technology
Advisory Committee to issue a report entitled Open Courts, Electronic Access to Court
Records, and Privacy ((Ottawa: Canadian Judicial Council, 2003), online: Canadian
Judicial Council
Administration of Justice Committee of the Council. This discussion paper assembled 33
conclusions including: that the right of the public to open courts is an important
constitutional rule; that the right of an individual to privacy is a fundamental value;
and that the right to open courts generally outweighs the right to privacy. See also
Judges Technology Advisory Committee, Use of Personal Information in Judgments and
Recommended Protocol (Ottawa: Canadian Judicial Council, 2005), online: Canadian
Judicial Council
Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic
Information (2004) 79:1 Wash L Rev 307. See also Lynn E Sudbeck, Placing Court
Records Online: Balancing Judicial Accountability with Public Trust and Confidence
An Analysis of State Court Electronic Access Policies and a Proposal for South Dakota
Court Records (2006) 51:1 SDL Rev 8; Natalie Gomez-Velez, Internet Access to Court
Records: Balancing Public Access and Privacy (2005) 51:3 Loy L Rev 365; Andrew D
Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to
Information Generated Through Litigation (2006) 81:2 Chicago-Kent L Rev 375;
Kristen M Blankley, Are Public Records Too Public? Why Personally Identifying
Information Should Be Removed from Both Online and Print Versions of Court
Documents, Note, (2004) 65:2 Ohio St LJ 413.
Other jurisdictions such as France and its highest court (la Cour de cassation) have
progressively favoured anonymization techniques, however partial: see the discussion of
the lAssociation des Hautes juridictions de cassation des pays ayant en partage lusage
du franais, online: AHJUCAF
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 297
Whereas few but the most dedicated (or academically interested) indi-
viduals 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 connec-
tions and associations. What is more, in contradistinction to an access to
information request,22 a search engine expedition can reap inaccurate if
not misleading dataan aggregate of oft-unrelated and potentially unre-
liable 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 per-
fectly acceptable at the very best, or innocuous, if not completely irrele-
vant, at the very least, now risk tainting the perception of impartiality;
thereby further constricting the realm of ethical expression and associa-
tion 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 (veri-
fied 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 onerousalbeit no
more dependableactivity, thus potentially giving rise to increased and
presumably frivolous allegations of partiality.24
Si la jurisprudence disponible sur linternet est progressivement anonymise,
conformment la dlibration de la Commission nationale de linformatique
et des liberts no 01-057 du 29 novembre 2001 portant recommandation sur la
diffusion de donnes personnelles sur internet par les banques de donnes de
jurisprudence, les dcisions accessibles sur lintranet justice ne le sont pas
(ibid [footnotes omitted]).
So too has Belgium:
La publication sur internet est anonymise (remplacement de lidentit des
personnes physiques par des initiales (ibid at Belgique, Cour de cassasion).
Others such as Switzerland have yet to do so:
Actuellement, les dcisions enregistres dans la base de donnes ne sont pas
anonymises, mais figurent en texte intgral comprenant le rubrum
(composition de la cour, nom du greffier, nom des parties notamment), ltat
de fait, la motivation et le dispositif (ibid at Suisse, Tribunal fdral).
22 Access to Information Act, RSC 1985, c A-1.
23 For a detailed discussion of the phenomenon of googling the judge, see Eltis, Impact
of New Technologies, supra note 6.
24 Ibid.
298 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Not only is data purportedly pertaining to the judges own expression
and association fair game but also information relating to their family,
colleagues, and former associatesnot to speak of litigants. This informa-
tion might also inadvertently be attached or be involuntarily or errone-
ously attributed to him.
What is more, a judges impartiality can be brought into question for
arguably improper motives25 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, us-
ing the judges core identity against him. This may lead to claims dis-
criminating 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 repri-
mand a judges very identity (gender, cultural, religious, or other)in
terms of either appointment or recusalas cultural affiliations enter dis-
putes 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
25 I.e., parties requesting attorneys of the same gender or cultural/religious, socio-
economic background as themselves.
26 I.e., in terms of appointment or recusal. For a general discussion of the former see
Karen Eltis & Fabien Glinas, Judicial Independence and the Politics of Depoliticiza-
tion (2009), online Social Science Research Network
27 See John Sopinka, Must a Judge be a Monk: Revisited (1996) 45:1 UNBLJ Rev 167.
28 For example, Lamer CJC, as he then was, was Catholic, and appears on Wikipedia (un-
der current entry) as a Canadian Roman Catholic and member of the Roman Catholic
Church: Wikipedia, sub verbo Canadian Roman Catholics, online:
Lamer drew condemnation not only for supporting the striking down of Can-
adas abortion law in the pivotal 1988 Morgentaler case, but also for admit-
ting afterward he did so on the basis of public opinion. Had you asked me at
a hearing if I was for or against (abortion), I would have said against, he
said at the University of Toronto in 1998 (Antonio Lamer liberated Canada
for Abortion, Catholic Insight 16:1 (January 2008) 29 at 30, online:
Could his belonging to a church or his being Catholic, for that matter, constitute reason
today for disqualification? An Internet search can also reveal whether a judge served in
the military (Lamer CJC served as a member of the Royal Canadian Artillery and In-
telligence Corps, and Dickson CJC, as he then was, served Canada in World War Two)
with its own ramifications on the above-discussed).
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 299
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 Ju-
rists30 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. Helows attorneys googled the
judge and found that she was a member of a Jewish professional associa-
tion.32 This information was used to attack the judge notwithstanding the
fact that Ms. Helow did not claim that the judges 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 dissemi-
nation of personal and unrelated information over the Internet, its avail-
ability to litigants, and the potential for resulting frivolous claims or ma-
nipulation.34
29 Helow v Scotland (AG), [2007] CSIH 5 at para 16, [2007] SC 303 [Helow], affd [2008]
UKHL 62, 2 All ER 1031 [Helow (HL)].
30 See generally, Michal Navoth, IAJLJ Membership no Proof of Judges Partiality Jus-
tice 44 (Spring 2007) 46, online: The International Association of Jewish Lawyers and
Jurists
31 See Damien Henderson, Judge Cleared of Jewish Bias The Herald [Scotland] (17
January 2007) online: HeraldScotland
impartiality when ruling on an immigration case of a Palestinian woman was compro-
mised by being part of the International Association of Jewish Lawyers and Jurists.
See also Scottish Jewish Judge Cleared of Bias Charges JTA (13 February 2007)
online: Frosts Scottish Anatomy
Partiality in Palestinian Asylum Seeker Case The Journal Online (17 January 2007)
online: Journal Online
The Associations aims include the advancement of human rights, the pre-
vention of war crimes, the punishment of war criminals and international co-
operation based on the rule of law and the fair implementation of interna-
tional covenants and conventions. It is especially committed to issues that
are on the agenda of the Jewish people, and works to combat racism, xeno-
phobia, anti-Semitism, Holocaust denial and negation of the State of Israel.
32 Hellow, supra note 29 at para 16:
Upon receiving intimation of the judges decision, those representing the pe-
titioner chose, for whatever reason, to make further inquiry about the judge.
By means of the Internet search engine Google they discovered information
about her which was (and is) publicly available on various websites. One
such website was that of The International Association of Jewish Lawyers
and Jurists (the Association), www.intjewishlawyers.org.
33 Helow (HL), supra note 29.
34 The judges ethnicity is well known because she is the first Jew appointed to the Su-
preme Court of Scotland.
300 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In this manner, technology can be said to reawaken and indeed trans-
form the recurring issue of the relevance of a judges personal traits35 and
whether a partys explicit request for a custom-made judge might be le-
gitimately entertained if not approved.36 In other words, as the debate re-
garding individualized justice or the notion of incorporating cultural
sensitivity and cultural pluralism into the law37 gains momentum,38 the
enhanced capability to look up and indeed recreate a judges (or judicial
nominees) identity online, is bound to enliven the issue of a partys enti-
tlement to a judge tailored to their cultural specifications.39
35 See e.g. Madame Justice Bertha Wilson, Will Women Judges Really Make a Differ-
ence? (1990) 28:3 Osgoode Hall LJ 507; Peter McCormick & Twyla Job, Do Women
Judges Make a Difference? An Analysis by Appeal Court Data (1993) 8:1 CJLS 135;
Constance Backhouse, The Chilly Climate for Women Judges: Reflections on the Back-
lash from the Ewanchuk case (Paper delivered at the workshop Adding Feminism to
Law: The Contributions of Madame Justice LHeureux-Dub, Ottawa, September
2002), (2003) 15:1 CJWL 167. See also Justice Maryka Omatsu, On Judicial Appoint-
ments: Does Gender Make a Difference? in Joseph F Fletcher, ed, Ideas in Action: Es-
says on Politics ands Law in Honour of Peter Russell (Toronto: University of Toronto
Press, 1999) at 176 (also citing the work of Carol Gilligan regarding social context). For
a US perspective, see Carol Gilligan, In a Different Voice: Psychological Theory and
Womens Development (Cambridge, Mass: Harvard University Press, 1993); John
Gruhl, Cassia Spohn & Susan Welch, Women as Policymakers: The Case of Trial
Judges (1981) 25:2 American Journal of Political Science 311.
36 That is to say, one whose gender and ethnicity conform to the litigants specifications or
correspond to their own portrait. See also James Stribopoulos & Moin A Yahya, Does a
Judges Party of Appointment or Gender Matter to Case Outcomes? An Empirical
Study of the Court of Appeal for Ontario (2007) 45:2 Osgoode Hall LJ 315; Cass R Sun-
stein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of
Appeals: A Preliminary Investigation (2004) 90:1 Va L Rev 301.
37 See Pascale Fournier, The Ghettoisation of Difference in Canada: Rape by Culture
and the Danger of a Cultural Defence in Criminal Law Trials (2002) 29:1 Man LJ 81;
Jennifer Choi, The Viability of a Cultural Defence in Canada (2003) 8:1 Can Crim L
Rev 93.
38 For the development of cultural defences, see ibid.
39 Composition of juries remains, of course, a contentious matter in the United States: See
e.g. JEB v Alabama, 511 US 127, 114 S Ct 1419 (1994); Georgia v McCollum, 505 US
42, 112 S Ct 2348 (1992); Powers v Ohio, 499 US 400, 111 S Ct 1364 (1991); Edmonson
v Leesville Concrete Co, 500 US 614, 111 S Ct 2077 (1991); Batson v Kentucky, 476 US
79, 106 S Ct 1712 (1986); McCleskey v Kemp, 478 US 1019, 107 S Ct 1756 (1986); Norris
v Alabama, 294 US 587, 55 S Ct 579 (1935); Carter v Texas, 177 US 442, 20 S Ct 687
(1900); Warren Sheri Lynn Johnson, Litigating Racial Fairness after McCleskey v
Kemp (2007) 39:1 Colum HRL Rev 178; Kenneth J Melilli, Batson in Practice: What
We Have Learned About Batson and Peremptory Challenges (1996) 71:3 Notre Dame
L Rev 447; Regina Graycar, The Gender of Judgments: Some Reflections on Bias
(1998) 32:1 UBC L Rev 1; Tanya E Coke, Justice May be Blind but is she a Soul Sister?
Race Neutrality and the Idea of Representative Juries, Note, (1994) 69:2 NYU L Rev
327 ( that the public believes that all-white juries put minority defendants and victims
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 301
II. Why Does Technology Matter? The Effect of Online Court Docu-
ments 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 ac-
cess to mass Internet postings of court documents. These range from ex-
treme 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 Depart-
ment of Justice warns of an entire web-industry, organized and specifi-
cally 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, enabledor at the very least assistedby 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 Stewarts 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, Stewarts PACER files where featured on
whosarat.com, 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 plas-
tered the whosarat.com materials, which labeled Stewart a rat and
a snitch, on utility poles and windshields in Stewarts neighbor-
hood, 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 sug-
gest 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
at a disadvantageis reason to worry about prevalence of non-representative trial ju-
ries at 331).
40 See e.g. Winn, supra note 21.
41 See e.g. David L Snyder, Nonparty Remote Electronic Access to Plea Agreements in
the Second Circuit (2008) 35:5 Fordham Urb LJ 1263.
42 Ibid at 1264 [footnotes omitted].
43 See the discussion on the differences between paper and the Net, below.
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Therefore, blanket filing, although aimed at enhancing accessibility, can
in fact have the opposite effect onlineinadvertently deterring participa-
tion in the justice systemthereby frustrating the very rationale underly-
ing access. This unintended consequence arguably speaks to a phenome-
non known as translation, coined by Justin Hughes in a different con-
text; 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 revisit-
ing 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 docu-
ments that discounts the impact of the networked environment on justice
participants rights (primarily privacy and dignity) constitutes a far ele-
vatedand 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 ex-
ists, and [is] thus no longer justified46 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 con-
text.
I argue that, in this context, unrestrained disclosure can in fact dis-
turbingly 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 de-
fined (as shall be argued in Part III)or worse, if they are anachronisti-
cally conceived as adversarialin a virtual world where privacy can no
longer be spatially confined; and where wholesale access to data pro-
duces little meaningful information. As a result, access may no longer
serve the rationales of openness and accountability and instead under-
mines the very entry to justice it was intended to foster.
44 Justin Hughes, The Internet and the Persistence of Law (2002-2003) 44:2 BCL Rev
359 at 360.
45 Discussing the scope of rules, see Lyria Bennett Moses, Why Have a Theory of Law
and Technological Change? (2007) 8:2 Minn J L Sci & Tech 589 at 595.
46 Ibid.
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 303
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 tech-
nological 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 obscu-
rity48 afforded by the paper records of years past. That translates into
boundless, unprecedented, and unchecked distribution, with the ills com-
monly associated with most good things in unlimited and wholesale of-
fering.
Most significantly, it increasingly involves a loss of court control over
its own materials. That is to say that once unleashed onlinehowever in-
advertentlymost of these files cannot be edited, effectively redacted, or
recalled; often despite the courts 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 plaintiffs orientation, sexual practices and health
that prompted the suit. Although the judge did order the inflammatory
details be promptly redacted from the decision at As lawyers request,
immediately following publication, the first copy of the pleadings were left
floating around cyberspace and could neither be tracked down nor effec-
tively eliminated. Of course counsels tardy realization that the statement
of claim would be posted online in accordance with the courts standard
practice was presumably at least partially to blame for the lamentable re-
sult. However, this phenomenon is quite common, as attorneys, not unlike
judges, gradually awaken to the darker side of technologycertainly at a
47 For a discussion on the difference between paper records and electronic records, see
Winn, supra note 21.
48 See United States (Deptartment of Justice) v Reporters Committee for Freedom of the
Press, 489 US 749 at 762, 780, 109 S Ct 1468 (1989).
49 Doe v Doe (4 January 2007) Tel Aviv 174875/06 (Magis Ct).
304 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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 records50 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 ver-
sions of court files coexist alongside unedited copies, floating around cy-
berspace, readily available and featuring all of the personal details the
court deemed inappropriate and sought to delete for the litigants protec-
tion. Moreover, whereas judges take pains to draft judgments in re-
strained and respectful language, lawyersnot to mention self repre-
sented litigantsare hardly as careful in phrasing their statements of
claim and motions. With electronic records and e-filing, these often in-
flammatory declarations can be propagated on the World Wide Web for all
to see. As noted, even if later withdrawn the damage caused is irrepara-
ble.
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 informa-
tion may no longer suffice to resolve complex problems of judicial in-
formation management. … The failure of the legal system to main-
tain the ancient balance between access and privacy will lead to the
greatest danger of allinhibiting citizens from participating in the
public judicial system.52
Somewhat less dramatically, but presumably no less disruptively, Inter-
net 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
50 Nova Scotia (AG) v MacIntyre, [1982] 1 SCR 175 at 189, 132 DLR (3d) 385 [MacIntyre].
51 See Kate Welsh, Court Records Access in Canada (Presentation delivered at the 6th
Conference on Privacy and Public Access to Court Records, Williamsburg, 6-7
November 2008) at 15, online: The Center for Legal and Court Technology
supra note 50.
52 Winn, supra note 21 at 328.
53 See e.g. Lisa C Wood & Marco J Quina, The Perils of Electronic Filing and Transmis-
sion of Documents (2002) 22:2 Antitrust 91.
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 305
Incorporated in a merger matter.54 The Commission failed to properly re-
dact 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 FTCs best efforts, it of
course was too late.
While technical or clerical errors have occurred since time immemo-
rial, 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 weightedfactored 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 publics right to arbitrarily hoard information en masse, irrespective
of its accuracy or relevance. Instead, precision and preservation of the in-
tegrity of data is a tremendous issue here, as the Internet, in Cass Sun-
steins words, doesnt have quality control.55 Plainly put, as data
abounds, transparency (not to mention accountability) no longer relates to
the ability to gather information per sesince 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 misin-
forming 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 in-
formation you need. This depends not merely on relevance but also on re-
liability or trustworthiness.56 As the old adage cautions, a little informa-
tion can be more dangerous than none, particularly in light of what
54 Ibid at 91.
55 Noam Cohen, Courts Turn to Wikipedia, but Selectively The New York Times (29
January 2007) online:
56 Whats so Special About CyberspaceReflections on Elkin-Koren and Salzberg,
online: (2006) 10:3 Lex Electronica at 5
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Daniel Solove labels the problem of aggregation of data57 stemming from
the Internets searchability. That is to say, previously disparate pieces of
information concerning an individual floating in cyberspace can be as-
sembled (incorrectly or even maliciously) to form a comprehensive digi-
tal profile of that person. Unlike an access to information request or paper
record therefore, a search engine expedition can reap misleading but nev-
ertheless persuasive data, an aggregate of unreliable yet compelling mor-
sels concerning a given litigant, witness, or even judgeas 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 cyber-
worlds 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 inhibit-
ing participation cannot serve the rationale underlying systems promot-
ing online posting, such as the US Public Access to Court Electronic Re-
cords 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 judges reputation can
be called into question (as in Justice Cosgroves case), what can be said of
precarious litigants or witnesses? It would therefore appear that an un-
derstanding of access divorced from considerations relating to the protec-
tion of litigants rights (including privacy), is irreconcilable with transpar-
ency and accountabilityfailing to achieve its purpose in light of techno-
logical change60and therefore must be reconsidered.
B. A Brief Aperu 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 balanc-
ing test. In the scales of justice access and the presumption of open-
57 The Digital Person: Technology and Privacy in the Information Age (New York: New
York University Press, 2004) at 149.
58 Ibid at 55.
59 See Public Access to Court Documents: Better, Faster … and Cheaper Than Ever Be-
fore The Third Branch 33:4 (April 2001) 7 at 7, online: Administrative Office of the
United States Courts
60 MacIntyre, supra note 50, and accompanying text.
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 307
ness, as traditionally understood, far outweigh privacy considerations61
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 fun-
damental principles. Seeking to comport with the imperatives of trans-
parency (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 publics right to transparent justice is an impor-
tant constitutional rule and that it generally outweighs the equally fun-
damental right to privacy.63 Accordingly, the presumption of openness
may only be refuted in very limited circumstances, primarily (but not lim-
ited to) young offenders, family matters, the protection of innocent third
parties, interim publication bans, and in some cases confidential commer-
cial information.64
61 For instance, the Supreme Court of Canada identified a strong presumption in favour of
publicity and openness; that said, the presumption in question can be rebutted for valid
reasons such as the need to protect innocent third parties (ibid).
62 See Open Courts, supra note 21. The paper established that the right of the public to
open courts is an important constitutional rule, that the right of an individual to pri-
vacy is a fundamental value, and that the right to open courts generally outweighs the
right to privacy (ibid at 2). In the United States, Martha Steketee & Alan Carlson pre-
pared a report for the National Center for State Courts and the Justice Management
Institute basing their guidelines on certain premises, including, the traditional policy
that court records are presumptively open to public access: National Center for State
Courts, Developing CCJ/COSCA Guidelines for Public Access to Court Records: A Na-
tional Project to Assist State Courts by Martha Wade Steketee & Alan Carlson (State
Justice Institute, 2002) at 1, online: National Center for State Courts
63 Darrel Pink et al, Session 5 Panel: Access to Judgments (Abstract of presentation de-
livered at the 8th International Conference Law Via the Internet, Lexum, Montreal,
26 October 2007) online:
64 See Right Honourable Beverley McLachlin, Courts, Transparency and Public Confi-
dence: To the Better Administration of Justice (2003) 8:1 Deakin Law Review 1 at 3-6.
See also the Dagenais/Mentuck test for refuting the open court principle: Dagenais v
Canadian Broadcasting Corp, [1994] 3 SCR 835, 120 DLR (4th) 12 [Dagenais]; R v Men-
tuck, 2001 SCC 76, [2001] 3 SCR 442, cited in McLachlin, supra at 5. The Dagen-
ais/Mentuck test was originally developed in the context of publication bans; however,
it was expanded in Re Vancouver Sun (2004 SCC 43, [2004] 2 SCR 332 [Vancouver
Sun]) to include application to all discretionary actions by a trial judge to limit freedom
of expression by the press during judicial proceedings (ibid at para 31). The test as
cited in Vancouver Sun reads as follows:
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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 con-
cepts in the cyber context; particularly vis–vis the courts duty to main-
tain 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
haveto their creditrecognized 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 inef-
ficiency of the redaction software.69
(a) such an order is necessary in order to prevent a serious risk to the proper
administration of justice because reasonably alternative measures will not
prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects
on the rights and interests of the parties and the public, including the effects
on the right to free expression, the right of the accused to a fair and public
trial, and the efficacy of the administration of justice (ibid at para 32).
65 See also Model Policy for Access, supra note 20; Recommended Protocol, supra note 21.
66 Open Courts, supra note 21; The US rule indicated in Steketee & Carlsonis to [r]etain
the traditional policy that court records are presumptively open to public access(supra
note 62).
67 See Open Courts, supra note 21 at para 119. Other exemptions include common statu-
tory protections.
68 Supra note 20 (judges are responsible for judgments).
69 In 2002 a Virginia resident created a watchdog website drawing attention to the
online availability of personal information by publicizing the personal information ob-
tained online of celebrities including Jeb Bush, Kelly Ripa and others. The creation of
the website was in response to her discovery that her local circuit court clerk was about
to place her mortgage documents online: see Andy Opsahl, Privacy: Agencies Struggle
to Redact Personal Data from Online Public Documents Government Technology (8
July 2008), online: Government Technology
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 309
Far more importantly, the problem lies neither in the normative
framework itself nor in the anonymization method, which can be im-
proved.70 Instead, there is a deeper underlying change neededone 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 partici-
pants in the justice process even when that duty clashes with accessibil-
ity. 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 reti-
cent to exercise this discretion and protect litigants privacy interests.
This is presumablyat least in partdue to a culturally narrow under-
standing of privacy coupled with a perceived dichotomy between privacy
and access, resulting in increasingly challenging and problematic situa-
tions.
Take, for instance, the Al Telbani case 72. Mr. Al Telbani, a graduate
student at Concordia University, was placed on Canadas 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 Telbanis personal infor-
mation was published for all to see, as per the open court principle, not-
withstanding 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
70 Regarding pseudonyms and anonymization, see Carole Lucock & Michael Yeo, Naming
Names: The Pseudonym in the Name of the Law (2006) 3:1 University of Ottawa Law
& Technology Journal 53. Courts commonly employ pseudonyms in an effort to camou-
flage litigants identities in family law matters in particular. Needless to say, however,
this practice is only relevant if and when certain standards generally related to propor-
tionality (benefits outweighing prejudicial effects) are met. See BB c Qubec (PG),
[1998] RJQ 317 (available on WL Can) (CA). The Quebec Court of Appeal followed the
two-pronged test established in Dagenais (supra note 64). These steps are as follows:
first, to consider whether a publication ban is necessary to avoid a compelling risk that
a trial would be inequitable; and second, to consider whether the beneficial effects of the
ban would outweigh the prejudicial effects on the free expression of those who would be
affected by the ban.
71 Recommended Protocol, supra note 21 at para 31, cited in Lucock & Yeo, supra note 70
at 73.
72 Al Telbani c Canada (PG), 2008 CF 1318 (available on CanLII).
73 Micheal Friscolanti & Martin Patriquin, Why Cant this Man Fly? A Judge Releases
the Identity of Canadas First No-Fly Suspect, Macleans (17 September 2008) online:
Macleans.ca
310 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
would permit him to refute the allegations levied against him; whereas
strangers to the caseanyone for that mattercan, 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 na-
ture 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 liabil-
ity) matter and therefore not sufficiently exceptional to justify a publica-
tion 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 coexis-
tence 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 impos-
sibility 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. Socit Canadienne de la Croix-Rouge77, 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
74 Parliament, Standing Committee on Access to Information, Privacy and Ethics, 40th
Parl, 2d Sess, No 004 (23 February 2009), online: Parliament of Canada
a violation of his Charter protected rights to privacy, due process, and free movement.
See Commission of Inquiry into the Investigation of the Bombing of Air India Flight
182, Supplementary Submissions to the Commission of Inquiry into the Investigation of
the Bombing of Air India Flight 182 (Ottawa, 2008), online: Commission of Inquiry
75 JL c AN, 2007 QCCS 3226, [2007] RJQ 1998 (Sup Ct) [JL].
76 Ibid.
77 (1992) 101 DLR (4th) 124, [1992] RJQ 2735 (CA) [cited to DLR].
78 Ibid at 128. See also Nathalie Des Rosiers & Louise Langevin, Representing Victims of
Sexual and Spousal Abuse (Toronto: Irwin Law, 2002). Des Rosiers & Langevin are of
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 311
III. Rethinking Privacy, Access, and their Relationship to One Another
To what, then, might this reticence be attributed? As already noted,
the answer mayat least in partlie in our legal traditions very under-
standing 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 conti-
nental (or civil law) counterpart. Accordinglyand since privacy is un-
doubtedly a highly mutable concept, both historically and culturally rela-
tive80comparative inquiry can expose what may be labelled a knee-jerk
balancing of ill-defined values that no longer serves the intended ration-
ale.
More specifically, in the common law tradition (which predominates in
the United States and Canada), an individuals right to privacy is gener-
ally assessed by reference to societys 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 con-
tradistinction 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
the opinion that fear of taboos is sufficient grounds for ordering that the parties identi-
ties be protected, whether it concerns AIDS victims or sexual abuse. The plaintiffs
should not have to pay the price for changing societys attitudes (ibid at 275, cited in
Lucock & Yeo, supra note 70).
79 Solove, Understanding Privacy, supra note 1.
80 David Lyon, Surveillance, Power, and Everyday Life in Robin Mansell et al, eds, The
Oxford Handbook of Information and Communication Technologies (Oxford: Oxford
University Press, 2007) 449 at 459.
81 See Karen Eltis, Can the Reasonable Person Still Be Highly Offended? An Invitation
to Consider the Civil Law Traditions Personality-Rights Based Approach to Tort Pri-
vacy University of Ottawa Law & Technology Journal [forthcoming], online: Social Sci-
ence Research Network
[Eltis, Highly Offended?].
82 Daniel Pollack, Preface in Daniel Pollack, ed, Contrasts in American and Jewish Law
(Hoboken, NJ: Yeshiva University Press, 2001), online: Jewish Law Commentary
la Cour Suprme en Droit Civil (2000) 34 RJT 607 at 618 [Popovici, Rle de la Cour
Suprme], citing W Page Keeton et al, eds, Prosser and Keeton on the Law of Torts, 5th
ed (St Paul, Minn: West, 1984) at 866-67; Laurence H Tribe, American Constitutional
Law, 2d ed (Mineola, NY: Foundation, 1988) at 775:
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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 pri-
vacy with the origins of the invasion of privacy tort, born of a seminal ar-
ticle titled The Right to Privacy.84 Though seldom addressed, the histori-
cal roots of that right in common-law England are particularly instruc-
tive. Under the English common law, the right to privacy was first recog-
nized by virtue of its intricate link to personal property. This is best evi-
denced by the now infamous saying, [T]he house of every one is his cas-
tle, first coined by the House of Lords in Semaynes Case (now colloqui-
ally known as a mans home is his castle).85 This alluded to the concep-
tion that a persons right to privacy fundamentally derives from his prop-
erty 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 histori-
cal aperu at the very least elucidates the understanding of privacy as the
right to be left alone in given spaces, defined externally rather than in-
herently to personhood.89
En droit canadien, privacy comprend non seulement les intrusions et
divulgations violant lintimit de chacun, mais englobe une sphre
irrductible dautonomie personnelle o les individus peuvent prendre des
dcisions intrinsquement prives sans intervention de ltat . Cest la
conception amricaine de Griswold c. Connecticut (1965), dans un systme o
lon ne connat pas les droits de la personnalit.
83 Eltis, Highly Offended?, supra note 81.
84 Samuel D Warren & Louis D Brandeis, The Right to Privacy (1890) 4:5 Harvard Law
Review 193.
85 (1604), 5 Co Rep 91a, Mich 2 Jac 1, 77 ER 194.
86 See Warren Freedman, The Right to Privacy (New York: Quorum Books, 1987). Freed-
man discusses the 1818 English case, Gee v Pritchard ((1818), 2 Swans 402, 36 ER 670)
where the Court of Chancery restricted the publication of a personal letter to protect a
property right (ibid at 3). Freedman discusses other English cases where courts
based their protection of the right of privacy upon the protection of a property right
(ibid).
87 See William L Prosser, Privacy (1960) 48:3 Cal L Rev 383 at 389-90; Alan F Westin,
Privacy and Freedom (New York: Atheneum, 1967) at 311, 333).
88 See Karen Eltis, Privacy in the Workplace, supra note 9 at 519.
89 See Morton J Horwitz, The Transformation of American Law, 17801860 (Cambridge,
Mass: Harvard University Press, 1977) at 31. Horwitz observed how the conception of
property changed from the eighteenth-century view that dominion over land conferred
the power to prevent others interference, to the nineteenth-century assumption that
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 313
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 mightat least in partbe re-
sponsible 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 Su-
preme Court of Canada in R v. Wise, many, if not the majority, of our ac-
tivities 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 laws libertarianoftentimes rigidvision of privacy, the civilian
legal method, captivated by the French experience, favours a more flexible
construction of actionable privacy infringements. Most importantly per-
haps, privacy is considered to be a personality rightan idea central to
the civilian tradition but alien to the common law. What that means suc-
cinctly is that privacy attaches to persons rather than property, irrespec-
tive of property or special constraints. In other words, Personality rights
focus on the trethe beingin contrast with the avoirthe having92
and are therefore divorced from territory. Central among these personal-
ity rights is privacy, which in turn is predicated on dignity.93
the essential attribute of property ownership was the power to develop it irrespective of
the consequences to others.
90 The argument framed in terms of quality versus quantity of available information is
found above at 23-25. See also Eltis, Highly Offended?, supra note 81.
91 [1992] 1 SCR 527 at 564-65, 70 CCC (3d) 193.
92 Adrian Popovici, Personality Rights: A Civil Law Concept (2004) 50:2 Loy L Rev 349 at
352, citing Alain Seriaux, La notion juridique de patrimoine: Brves notations
civilistes sur le verbe avoir (1994) 93:4 RTD Civ 801 at 804-806. Personality rights are
also known as droits primordiaux by reason of their importance: see France Allard,
Les Droits de la Personalit in Jose Payette, ed, Personne, famille et successions, vol 3
(Cowansville: Yvon-Blais, 2003) 61 at 61. Allard observes that these rights generally do
not have any inherent monetary-pecuniary value, as they are inherent to personhood.
According to Geoffrey Samuel, for better or for worse, the concept of le droit subjectif
[subjective rights such as personality rights] has little relevance in English Law: Geof-
frey Samuel, Le droit subjectif and English Law (1987) 46:2 Cambridge LJ 264 at
286. Personality rights have become increasingly important in Quebec law, as Laverne
Jacobs remarks: Quebec Civil law … over the past three decades, has increasingly
placed central emphasis on the person and personality rights: Laverne A Jacobs, In-
tegrity, Dignity and the Act Respecting Industrial Accidents and Occupational Diseases:
Can the Act Provide More Appropriate Compensation for Sexual Harassment Victims?
(2000) 30:2 RDUS 279 at 316.
93 Drawing on Popovici, Eltis writes, Le droit civil qubcois demeure fidle la tradition
civiliste, qui elle privilgie la notion de droits subjectifs inalinables. Ces droits de
314 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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 owner-
ship but by the basic needs of personhood. Instead of deriving from prop-
erty or being akin to seclusion, the civilian notion of privacy relates to
moral autonomy and as such is encompassed by human dignity, which in-
heres in legal personality and is considered an extension thereof.94
The civil law traditions construction of privacy rights has been broad.
Removed from the reasonable expectations doctrine, civilian jurisdic-
tions principled approach to civil liability is better able to protect individ-
ual privacy95 in intangible spaces (such as cyberspace), regarding certain
dignity-based personality rights as inalienable. As previously noted, hu-
man 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 pro-
tection of privacy in an era of constant technological and social change.
Moreover, the dignity-based conception seems to better comport with
Charles Frieds relational understanding of privacy as inherent to the no-
tions of respect, love, friendship, and trust, and that close human rela-
tionships are only possible if persons enjoy and accord to each other a cer-
personnalit intangibles ne sauraient tre assimils aux droits propritaires, car ils
dcoulent de la personnalit juridique du dtenteur (La surveillance du courrier
lectronique, supra note 9 at 495 [emphasis added, footnotes omitted], citing Popovici,
Rle de la Cour Suprme, supra note 82 at 615). Gregoire Loiseau also drew on
Popovici: lide dune protection de la personnalit humaine senracine et prend corps
sous la forme de droits subjectifs (Des droits patrimoniaux de la personnalit en droit
franais (1997) 42:2 McGill LJ 319 at 328, citing Popovici, Rle de la Cour Suprme
supra note 82 at 616).
94 C.f. Eric H Reiter, Personality and Patrimony: Comparative Perspectives on the Right
to Ones Image (2002) 76:3 Tul L Rev 673 at 677. See also James Q Whitman, The
Two Western Cultures of Privacy: Dignity Versus Liberty (2004) 113:6 Yale LJ 1151 at
1161-62.
95 See Colin J Bennett, Regulating Privacy: Data Protection and Public Policy in Europe
and the United States (Ithaca, NY: Cornell University Press, 1992). Bennett discusses
how enforcement of principles of privacy law varies considerably and is a function of
culture. See also Jon Bing, A Comparative Outline of Privacy Legislation, 2 Compara-
tive Law Yearbook of International Business 149-81. See also Steven Bellman et al,
Regional Differences in Privacy Preferences: Implications for the Globalization of Elec-
tronic Commerce (2002) [unpublished, archived at Columbia University Graduate
School of Business).
THE JUDICIAL SYSTEM IN THE DIGITAL AGE 315
tain measure of privacy,96 than does an understanding clinging to the no-
tion of isolation or seclusion.
As such, and for purposes of the discussion respecting paperless re-
cords, privacy may be construed as an ally of accessibility rather than ad-
versative to it. It can therefore be more easily reconciled with both the
courts commitment to openness and with its responsibility to protect liti-
gants 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 online97it may be that safeguarding
privacy can become a way towards ensuring access to justice and willing-
ness 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 hope-
lessly 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 ac-
cess 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 al-
ready 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, par-
ticipants are left unprotected; notwithstanding the courts 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 dis-
seminated online, eventually risks fostering a disinclination to participate
96 Privacy (1968) 77:3 Yale LJ 475 (privacy is linked to respect, love, friendship and
trust, and is the oxygen by which individuals are capable of building relations of the
most fundamental sort at 477-78).
97 Winn, supra note 21.
98 In Canada, see Open Courts, supra note 21. In the United States, see Steketee & Carl-
son, supra note 62.
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in the justice process. Thus, paradoxically, the very access to justice pa-
perless 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 plaintiffs sexually con-
tracted disease may haveat first glanceappeared to constitute a vic-
tory for access and transparency, it stands to reason that so doing may
dissuade similarly situated plaintiffs from availing themselves of the jus-
tice 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 compara-
tive inquiry can inform the paperless records debate. As noted, the
broader, dignity-based civilian construction enables us to reframe the de-
bate 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 courts 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 sac-
rificing 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 indiscrimi-
nately 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.
99 Supra note 75.
