Publication Bans

AuthorDavid A. Potts; Erin Stoik
 44
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT