Openness of information, especially when it comes to court records, is an increasingly difficult policy issue. We have always struggled to balance the protection of personal information against the need for public information and for justice (and the courts that dispense it) to be transparent. Increasingly dispersed and networked information makes this all the more difficult.
In 1991’s Vickery v. Nova Scotia Supreme Court (Prothonotary) Justice Cory (writing in dissent, but in agreement with the Court on these statements) positioned the issue as being inherently about the tension between the privacy rights of an acquitted individual versus the importance of court information and recordsbeing open.
…two principles of fundamental importance to our democratic society which must be weighed in the balance in this case. The first is the right to privacy which inheres in the basic dignity of the individual. This right is of intrinsic importance to the fulfilment of each person, both individually and as a member of society. Without privacy it is difficult for an individual to possess and retain a sense of self-worth or to maintain an independence of spirit and thought.
The second principle is that courts must, in every phase and facet of their processes, be open to all to ensure that so far as is humanly possible, justice is done and seen by all to be done. If court proceedings, and particularly the criminal process, are to be accepted, they must be completely open so as to enable members of the public to assess both the procedure followed and the final result obtained. Without public acceptance, the criminal law is itself at risk.
Historically the necessary balance has been arrived at less by policy negotiation than by physical and geographical limitations. When one must physically attend the court house to search for and collect information from various sources, the time, expense and effort necessary functions as its own form of protection. As Elizabeth Judge has noted, however, “with the internet, the time and resource obstacles for accessing information were dramatically lowered. Information in electronic court records made available over the Internet could be easily searched and there could be 24-hour access online, but with those gains in efficiency comes a loss of privacy.”
At least arguably, part of what we have been watching play out with the Right to be Forgotten is a new variation of these tensions. Access to these forms of information is increasingly easily and generally available – all it requires is a search engine and a name. In return, news stories, blog posts, social media discussions and references to legal cases spill across the screen. With RTBF and similar suggestions, we seek to limit this information cascade to that which is relevant and recent.
This week saw a different strategy employed. As part of the sentences for David and Collet Stephan – whose infant son died of meningitis due to their failure to access medical care for him when he fell ill – the Alberta court required that notice of the sentence be posted on Prayers for Ezekiel and any other social media sites maintained by and dealing with the subject of their family. (NOTE: As of 6 July 2016, this order has not been complied with).
Contrary to some, I do not believe that the requirement to post is akin to a sandwich board, nor that this is about shaming. Rather, it seems to me that in an increasingly complex information spectrum, insisting that sentence be clearly and verifiably linked to information about the issue. Instead, I agree that…
… it is a clear sign that the courts are starting to respond to the increasing power of social media, and to the ways that criminals can attract supporters and publicity that undermines faith in the legal system. It also points to the difficulties in upholding respect for the courts in an era when audiences are so fragmented that the facts of a case can be ignored because they were reported in a newspaper rather than on a Facebook post.
There has been (and continues to be) a chorus of complaints about RTBF and its supposed potential to frustrate (even censor) the right to KNOW. Strangely, that same chorus does not seem to be raising their voices in celebration of this decision. And yet…. doesn’t requiring that conviction and sentence be attached to “news” of the original issue address many of the concerns raised by anti-RTBF forces?