The Only Thing Worse Than Being Talked About

Is being talked about in a court decision that’s available online for all to see. At least if you’ve sued a former employer, and are looking for a new job. At the Volokh Conspiracy, Eugene Volokh reports on a case in which a man who believes he lost employment opportunities because prospective employers found out about his lawsuit against a previous employer sued companies providing both general internet search and specialized legal databases for making available online materials relating to that litigation. The complaint alleged violations of a variety of statutory and common law rules, but the court dismissed all these claims. The court added that publication of matters of public record, such as court proceedings and materials is, in any event, constitutionally protected.

I think that, in these circumstances, the outcome would be the same in Canada. I cannot see how the publication of court materials, unless the court itself ordered them to remain confidential, can amount to a common law tort; nor am I aware of any statutes that would prohibit it regardless of the circumstances (more on limited exceptions shortly). The constitutional situation is a bit different, since the Canadian Charter of Rights and Freedoms does not directly apply to the common law, though it would apply to a statute.  That difference wouldn’t matter here.

In any case, what concerns me right now is not the current legal situation or the question, which prof. Volokh addresses, whether there “is an adequate justification for suppressing speech about legal documents that have been released by the courts as a public record.” (His response is negative, and I think he is right.) It is the antecedent question whether any and all legal documents should be made matters of public record.

Generally speaking, our legal system favours publicity. The publicity of judicial proceedings helps ensure the impartiality, and perhaps also the quality, of judicial work. As with other branches of government, publicity is important for accountability. Closed, secret, or inaccessible courts are a hallmark of authoritarian political systems. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the Supreme Court has held that the openness of court proceedings, including the ability of the media to report on them, is an important constitutional value.

Important, but not absolute. The usual presumption of publicity can be overturned in particular cases, where the disclosure of elements of the evidence, normally a matter of public record, may compromise the impartiality of the proceedings (for example by influencing potential jurors) or reveal privileged information, such as commercial secrets. Such cases are regarded as exceptional; importantly, a party who wants the court to make some element of the case confidential has to ask the court to do so, which can be expensive and which many will not think of doing. (For example, refugee claimants rarely ask that their cases before the Immigration and Refugee Board or the Federal Court be anonymized, although if memory serves well, they are entitled to do so.)

But there are also some categorical rules which apply automatically, without a party having to do anything. At issue in Edmonton Journal was one such rule, prohibiting the publication of all sorts of details about family law cases. The Supreme Court held that the law was much too restrictive and thus an unconstitutional restriction of the freedom of expression. But narrower restrictions exist. For instance the names of minors involved in criminal cases are not published – the defendants are known by their initials. And in Québec, family law cases are identified by a number, rather than the name of the parties, with the names of the parties and the places where they live being replaced by initials in the court’s reasons (incidentally, the Alberta statute in Edmonton Journal allowed the publication of these details; Québec’s rule is essentially its mirror image).

The idea – and I think it is a sound one – seems to be that (many of) the positive effects of publicity can result from publishing the court’s decision but not the parties’ names. From the perspective of keeping the courts accountable, the publication of the parties’ names probably matters little; what is important is that journalists, lawyers, and interested citizens know what evidence was before the court and what the court did with it. On the other hand, there is also a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.

And now I’m coming back to the case I considered at the beginning of the post. So long as access to court materials, or even to judgments, was time-consuming, difficult and expensive, it mattered little that publicity was the rule in most cases. Realistically, only news media would bother accessing these records, and then only in a few cases which attracted sufficient attention to make the effort and expense worthwhile. The internet changes that. It is fairly easy, and relatively cheap or even free, to find materials (at least judgments) from any case one is interested in. Indeed, one need not even know there is a case. It is enough to google someone’s name to find court decisions involving that person. An employer who would not have gone to the courthouse to rummage through files just to see if a prospective employee had ever been involved in litigation can find this out in a matter of seconds from the comfort of his office. Indeed, he may find it accidentally – he might google an applicant’s name without the intention of finding out about the applicant’s litigation history, looking for something else – but that just comes up. However the information comes out, it can be very – and unfairly – damaging, As prof. Volokh points out,

[m]any employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if [the candidate] is one of several comparably well-credentialed candidates for the same spot.

So here are some questions. Does our general presumption of publicity of court materials still make sense in this new reality that the internet has brought about? Or should we re-balance free speech and privacy, perhaps by making anonymization the default rule? If so, should we make exceptions? A blanket anonymity rule might be problematic, because there are cases where knowing who is involved is very much in the public interest. But are exceptions workable? If not, does this mean we should abandon anonymity after all?

I don’t have answers to these questions. I would love to hear from you.

4 thoughts on “The Only Thing Worse Than Being Talked About

  1. Pingback: What’s in a Name? | Double Aspect

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  3. Pingback: Remain Nameless | Double Aspect

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