Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication

Abstract

The meaning of and purpose behind the open court principle have expanded and shifted over time. Currently in Canada the adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witnesses. Historically, notwithstanding this presumptive access, practical obscurity has protected much of this information, in that most people will not trouble themselves to physically attend court offices in order to review records filed there. However, continuing a policy of presumptive access could have devastating effects on privacy as court records move online. Unfettered online access removes the inconveniences and personal accountability associated with gaining physical access to paper records, thereby opening up sensitive personal information to the voyeuristic gaze of the public. We take the position that in this context, presumptive accessibility jeopardizes the fundamental human right to privacy without substantially contributing to the underlying values of the open court principle: transparency and access to justice. As such, we argue that mechanisms to reintroduce friction into the process of gaining access to personal information ought to be taken to rebalance the public interest in open courts with the public interest in the protection of privacy.