Letter to the editor: Open court impact on privacy, fair proceedings

By Jennifer Murphy

Law360 Canada (February 13, 2023, 11:19 AM EST) -- I am writing to express my concern about the current state of open court records in Canada and their impact on privacy and fairness of proceedings.

Open court records are a vital part of the legal system, but they have increasingly become a problem in our digital age. They are often a violation of privacy, and the benefits of having them made public do not always outweigh the personal consequences on individuals. The open court system can lead to unfair proceedings, where individuals are forced to make decisions about their privacy and mental health without adequate protection.

The threat of personal information being made public has a significant impact on the ability of victims to come forward and seek justice. The open court system creates a disincentive for individuals to come forward, especially in cases that deal with sensitive issues like personal injury and sexual assault. For example, a victim of sexual assault may choose to not come forward or proceed to trial due to the fear that their prior mental health information may be made public. This disincentive has likely contributed to the low reporting rate of sexual assault in Canada.

Additionally, the open court system has a negative impact on the mental health of individuals. There have been numerous instances of people who have committed suicide during or after trials, due to their sensitive information being made public. This is unacceptable, and the open court system must prioritize the privacy and protection of individual victims over public access to court records.

There are potential solutions to this problem. Anonymizing information, such as changing the names of individuals to non-identifying names (e.g. “Person A”) or protecting certain categories of cases from public access, would help preserve privacy. Another idea is to provide differential access, so that only lawyers who have been called to the bar can access all information, while the general public cannot.

The European Union has recently passed the right to be forgotten, which allows individuals to request the removal of personal information from search engine results. Canada is considering a similar law, but this does not apply to open court records. The need for a right to be forgotten in the judicial system is more pressing now than ever, as the open court system continues to hurt the most vulnerable in society and violate their privacy.

In conclusion, the open court system needs to be re-evaluated in light of the digital age. The privacy and protection of individuals must be prioritized over public access to court records. Anonymizing information or providing differential access to court records are potential solutions that should be considered. The open court system should not cause victims to suffer more than they already have, and it should not lead to unfair proceedings or put the lives of individuals at risk.

Jennifer Murphy lives in Hamitlon, Ont.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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