I have posted a number of times about the problem of (unwanted) publicity which the appearance of one’s name in judicial decisions might bring (my posts on this topic are collected here). Because judicial decisions are widely and freely available on the internet, being identified as a party to a lawsuit can damage one employment prospects; it can reveal details about one’s personal life, financial situation, or health problems; it can even, in an extreme case, be outright dangerous. So I have been wondering aloud whether we would not do well to apply the rule which Québec already has for family law cases: the parties are not identified in the courts’ reasons for judgment. In this way, the public can still, as I put in an earlier post, “know what evidence was before the court and what the court did with it,” which is important for keeping the law accessible and the courts accountable, but without compromising the actual people involved.
I want to come back to this question, because I think that my previous attempts to grapple with it missed an important issue. All of the cases which my previous posts on this topic discussed involved individuals, at least as parties seeking anonymity. But much litigation involves corporations rather than physical persons. If we think about expanding the anonymization of cases, then we must address the issue of what to do about corporate parties. Is anonymity warranted for them too? It is interesting that the only categorical anonymity rules in Canadian law (at least those that I am aware of) concerns types of cases where corporations cannot be involved, namely family law proceedings in Québec and criminal cases were the accused is a minor. But could a requirement of anonymity, or even an entitlement to anonymity, be applied in “ordinary” cases which might involve corporate as well as individual parties?
These questions, in turn, force us to think again about the purpose of anonymity, even for individuals. Is the reason we anonymize certain cases the protection of privacy or that of reputation? These two interests are closely related, but not identical. (Actually, this might be a controversial assertion. The Supreme Court has invoked privacy as a reason for protecting individual reputations. I think this is wrong, but I cannot defend this claim here. I will only say that privacy, in my view, is a right to be left alone; it would matter even on a desert island. Reputation, by contrast, only makes sense in a context where you associate with others. It is the opinion others have of you.)
In some cases, the driving concern is surely privacy ― as in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, where the Supreme Court authorized a teenager who was the victim of cyberbullying to proceed anonymously against her tormentors. But in other cases, I am not so sure. Is it really privacy, for instance, that justifies hiding the identities of minors who are accused ― and even of those who are convicted ― of crimes? Unlike, say, that teenager’s personal life, a crime, especially one that has been proven in court, is not exactly a private matter. It personally concerns a number of people other than the perpetrator, it concerns the state, and it possibly concerns the public at large. Arguably, the better reason for anonymity in such cases is a solicitude for the reputation of the accused, for their ability eventually to make a life for themselves free from the stain of the faults of their youth.
The distinction matters because it would be, it seems to me, somewhat strange to say that corporations have a right to privacy which the law ought to protect. The law does, however, protect corporate reputations. (For example, corporations are capable of suing in defamation ― in Canada at least (as well as in the UK); some Australian states have severely limited their ability to do so.) If the reason for anonymity in judicial decision is privacy, corporations should not benefit from it. If it is reputation ― well, the question is more difficult.
As I suggested in an earlier post, “there is … a legitimate public interest in knowing what is happening to whom, or who exactly is involved in stories that attract attention.” There is also a legitimate public interest in knowing that somebody ― whether an individual or a corporation ― is “bad guy,” which a judicial decision can reveal. A blanket rule of anonymity for any and all cases would surely be a bad idea (quite apart from questions about its constitutionality). But what about more limited rules? What about rules that allow the successful party (whether plaintiff or defendant) to remain anonymous? Would such rules even be workable? I’m not sure about that. Much as before, I have very few answers here. I just wanted to add another consideration to my and, I hope, your ongoing reflection.
Double Aspect 