Equality at Stake: Connecting the Privacy/Vulnerability Cycle to the Debate about Publicly Accessible Online Court Records

AuthorJacquelyn Burkell & Jane Bailey
PositionAssociate Professor, University of Western Ontario Faculty of Information and Media Studies/Professor, University of Ottawa Faculty of Law (Common Law Section)
Equality at Stake: Connecting the
Privacy/Vulnerability Cycle to the
Debate about Publicly Accessible
Online Court Records
Jacquelyn Burkell* & Jane Bailey**
A considerable amount has been written about the privacy implications of publishing
court and tribunal records online. In this article the authors examine the linkages between
privacy and vulnerability for members of marginalized communities and, drawing on
Calo’s “vicious cycle” of privacy and vulnerability, suggest that publicly accessible online
court records represent an equality issue as well. Drawing on social science research
and privacy theory, the authors demonstrate the potentially disproportionate eect of
online court records on members of marginalized communities. ey then examine
Canadian case law, legislation and policy that impose restrictions on public disclosure
of information from court proceedings and disclosure of information within court
proceedings to highlight a limited pre-existing recognition of the privacy/vulnerability
cycle. In conclusion they suggest that removal of personal information from court records
made publicly available online would serve to protect both privacy and equality rights.
* Associate Professor, University of Western Ontario Faculty of Information
and Media Studies.
** Professor, University of Ottawa Faculty of Law (Common Law Section).
ank you to the Social Sciences and Humanities Research Council for
funding Towards Cyberjustice: Rethinking Processual Law, a seven-year
Major Collaborative Research Initiatives (MCRI) project of which this
paper forms a part. anks also to Angela Livingstone for her amazing
research assistance and support.
Burkell & Bailey, Equity at Stake
I. I
II. E   P/V C   L
A. Privacy and Vulnerability
B. Connecting the Privacy/Vulnerability Cycle to Court Records
1. Vulnerable Populations Over-Represented in Court
2. Addressing Marginalization in the Courts
3. Records Reveal Stigmatizing Information
III. R   P/V C  C L
A. Publication Bans and the Privacy/Vulnerability Cycle
B. Case-by-case Privilege and Deemed/Implied Undertakings
C. Children and the Privacy/Vulnerability Cycle
1. Child Welfare and Family Law Proceedings
2. Youth Criminal Justice Act
D. Sexual Assault Complainants and the Privacy/Vulnerability Cycle
1. Prohibitions on Publication of Identifying Information
2. Restrictions on the Use of Complainants’ Past Sexual
E. Other Equality-Seeking Groups and the Privacy/Vulnerability Cycle
F. e Privacy/Vulnerability Cycle and Online Court Records:
Commentary and Policy
IV. C
[T]he more information you have about a person or group, the greater the
potential to take advantage of them. e fewer advantages a person or group
already enjoys, the lesser their ability to resist expectations and requirements of
turning over information in exchange for support. e result is a vicious cycle
which bears great exploration and may militate in favor of stronger privacy
protections for the chronically vulnerable.
Ryan Calo1
1. Ryan Calo, “Privacy, Vulnerability, and Af‌fordance” (2017) 66:2 DePaul
Law Review 591 at 597.
(2018) 4 CJCCL
I. Introduction
Court and tribunal records from around the world are increasingly
publicly accessible online. ese initiatives of‌fer, as we and others
have noted, ground-shifting opportunities for improved access to
justice and for the transparency of court proceedings; however, they
simultaneously raise serious privacy issues for those involved, willingly
or unwillingly, in those proceedings.2 In this article we explore the
complex and iterative relationship, characterized in the epigraph by
Calo, between publicly accessible, unredacted, online court records and
marginalization, vulnerability and inequality. Specif‌ically, we suggest that
members of equality-seeking communities stand to be disproportionately
negatively af‌fected by online publication of court records incorporating
personal information. In this way, online court records constitute not
only a privacy problem, but an equality problem as well. is further
dimension adds urgency to the need for privacy and equality-respecting
approaches to online publication of court and tribunal records.
We advance our argument in Parts II and III. Part II examines
literature and social science evidence relating to privacy and vulnerability,
suggesting that members of marginalized communities in Canada,
including poor and homeless persons, those suf‌fering from mental illness,
racialized minorities and Indigenous peoples, will be disproportionately
negatively af‌fected by publicly accessible online court records. Drawing
on Calo’s “vicious cycle” analogy, we of‌fer three reasons in support of
this assertion: (i) members of certain marginalized communities are
over-represented in many types of court proceedings; (ii) the impacts
of marginalization may force members of these communities to engage
with the justice system; and (iii) potentially stigmatizing information
2. Jane Bailey & Jacquelyn Burkell, “Revisiting the Open Court Principle
in an Era of Online Publication: Questioning Presumptive Public Access
to Parties’ and Witnesses’ Personal Information” (2017) 48:1 Ottawa
Law Review 147; Natalie A MacDonnell, “Disability Disclosure in the
Digital Age: Why the Human Rights Tribunal of Ontario Should Reform
its Approach to Anonymized Decisions” (2016) 25:1 Journal of Law and
Social Policy 109; Karen Eltis, Courts, Litigants and the Digital Age: Law,
Ethics and Practice (Toronto: Irwin Law, 2012) at 5.

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