Publication Bans

• Author: David A. Potts; Erin Stoik
• Pages: 461-471

461

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Publication Bans

As more anti-SLAPP motions are launched, issues involving open court and

anonymization of identities of parties, redaction of information, private

hearings, and sealing orders will likely bubble to the surface.

In this context, the fundamental, deeply entrenched principle of the open

court is pitted against numerous growing and compelling exceptions.

The courts in Canada, the United Kingdom, Australia, and the United

States have examined the issues at stake in considerable detail, analyzing the

principles, origins, exceptions, and analytical methodologies used in dif‌fer-

ent jurisdictions.

While the principles are relatively clear, their application is not. One

size does not f‌it all. The history, culture, issues, pressures, risks, and stakes

involved in the debate between open justice and the administration of jus-

tice in the case of, for example, a preliminary hearing is markedly dif‌ferent

from the same debate in a criminal trial, a hearing involving the interests of

children, a deportation proceeding, a bankruptcy, an intellectual property

dispute, or a cyberlibel action. Despite the fundamental question at stake,

these areas have more to distinguish them than they have in common.

Moreover, while many of the principles are as applicable in the era of

the smart phone, Google, Facebook, and Twitter as they were in that of the

clipper ship, the hansom cab, and the steam engine, or of the BBC, the CBC,

the Wall Street Journal, and the Financial Times, the internet has introduced

new problems and new solutions that need to be identif‌ied and examined.

Though the debate surrounding the application of these principles per-

colates into every facet of the law, only defamation cases and privacy cases

will be referred to here.

The pivotal decisions of the Supreme Court of Canada, the Supreme Court

of the United Kingdom, the House of Lords, the High Court of Australia, and

the United States Supreme Court about the open court principle are collected.