The CBC has a story about criticisms of Ontario’s rules which allow the publication of the parties’ names in family law court decisions. The availability of these decisions online, especially on CanLII, makes them widely accessible―and people are concerned about others learning the details of their divorces, their personal information, or even seeing allegations made against them, with or without basis, by acrimonious exes. Some people say that a rule like that in Québec, where parties (and their places of residence) in family law cases are identified only by initials would be better to protect the parties’ privacy, while still letting the public and the media know what issues court cases are about and how the courts deal with them. But judges and government officials seem uninterested in considering such a change, pointing to the fact that courts can already order elements of the evidence to be kept confidential.
I wrote a long post on this same issue―though not only in family law cases―last month. About Québec’s rule of anonymity, I wrote that it is based on
[t]he idea―and I think it is a sound one―… 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.
I didn’t know, and I still don’t, how to balance these considerations. I concluded with some questions, which bear repeating:
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?