The Open-Court Principle, Litigant Privacy, and Electronic Court Records

• Author: Karen Eltis
• Profession: University of Ottawa Columbia Law School
• Pages: 50-63

50

CHAPTER 3:

THE OPENCOURT PRINCIPLE,

LITIGANT PRIVACY, AND

ELECTRONIC COURT RECORDS

A. INTRODUCTION

Courts, not unli ke many others actors in society, eager to show that they

are not lagging behind the ti mes, with good reason have tended to em-

brace technology, whose promise of simplicity and eciency is dicult to

ignore. However, in so doing, a nd in a sincere eort to promote and expand

access, they, again like many others, have overlooked some of the perils

inherent in the uninformed or impulsive use of complex innovative tools.

is is particu larly true with respect to electronic or online court

documents, which tend to raise signicant issues, only now beginning to

gain attention, amidst the unbridled enthusiasm that originally greeted

them. Particula rly, I refer to the inadvertent disclosure of personal infor-

mation in ways unanticipated by existing rules and t he resulting aront to

the very access to justice that dig ita l les were meant to promote.

Canada’s Privacy Commissioner pointed to this emerging predica-

ment, cautioning: “the open-court rule — which is extremely historically

important — has become distorted by the eect of massive search engines .”1

Information of this nature has always been public — with excellent

reason. e distinction between the past a nd present circumstance lies

in the new conception of “accessibility”; namely, there is now an audience

1 Kirk Makin, “Online Tribunal Evidence Leaves Citizens’ Data open to Abuse ” The

Globe and Mail (20 August 2008) A5.