Remain Nameless

I wrote in the past, here and here, about the serious problems that can result from people’s involvement in lawsuits, and details of their private lives and quarrels being exposed for all to see in court decisions available on the internet. But bad as it is if your name being associated with a lawsuit prevents you from getting a job or lets your neighbours know things about you that you don’t want them to, the dangers are worse for some people, as a case now before the Québec Court of Appeal illustrates.

The case concerns the constitutionality of the requirement of s. 59 of the Civil Code of Québec that a person applying for a change of name in Québec be a Canadian citizen. The appellants, who brought the constitutional challenge, are a parent and child who were granted refugee status because of a risk of persecution by the state and/or their relatives, including the spouse/other parent in their native country. In order to avoid the spouse tracing them in Canada, they seek to have their names changed. But s. 59 CCQ prevents this until they become Canadian citizens―which will not happen for several years at best. The Superior Court dismissed their constitutional challenge for lack of service to an interested party―the spouse/other parent (escaping from whom is the whole point), and they are appealing.

They have also brought a motion to ensure the confidentiality of the proceedings, on which the Court ruled last week in Droit de la famille 123545, 2012 QCCA 2224. The appellants asked for

the right to proceed anonymously, a prohibition on access to court records through a permanent sealing order, a prohibition on access to any resulting judgment unless any passage that could be used to identify the appellant, the child and the other parent have been removed, as well as a publication ban designed to protect the identification and location of the appellant and the child (par. 16).

As the Court pointed out, there are important considerations at stake. On the one hand, there is the principle of open court, which is especially compelling in this case since it involves a challenge to a the constitutionality of a statute. But “[o]n the other hand, the appellant and/or the child would face the likelihood of serious harm, including the risk of kidnapping and even death, if some relatives were made aware of their whereabouts” (par. 15).

Balancing these factors, the Court granted the motion in part. It allowed the appeal to proceed anonymously, using pseudonyms, rather than only banning the publication of identifying information (while still making it available to media or lawyers) as is usual in family cases in Québec. Instead of sealing the entire court file, however, it ordered the creation of two separate files, one sealed, and the other, accessible to the public, from which identifying information will have been removed. The Court also refused to ban the publication of judgments, so long as they do not identify the appellants. It did grant the ban on publication of identifying information, which is already standard practice in family matters in Québec.

Sounds right to me. The decision on the constitutional challenge itself will be interesting. Stay tuned.

A Question for the SCC

I wrote on Friday, in a post about A.B. v. Bragg Communications Inc., 2012 SCC 46, the Supreme Court’s recent decision allowing a victim of cyber-bullying to bring her defamation suit against the person responsible for it anonymously, that “the interesting question” about the decision is how far does its principle extend:

In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

I am not the only one asking the question. The blawg All About Information does too, in its own comment on A.B., wondering “about the scope of the class the Court intended to protect.” As it observes,

[s]ome text in the decision would suggest the class is limited to children subject to sexualized cyberbullying … At the same time, the Court made a number of broad statements about the impact of bullying on children in general, whether online or in the physical world and whether sexualized or based on some other vulnerability.

Its conclusion is that

[p]erhaps the best way to read the decision is that its binding effect extends to sexualized cyberbullying, but it is also authority for like protection in other bullying scenarios experienced by children.

For my part, I still think that some of what the Court said can used, at least as a basis for arguments, in an even wider spectrum of cases: cases of cyber-intimidation or harassment where the victim is an adult, or perhaps other sorts of claims where the victim might be deterred from going to court by the publicity that such a process can bring, like defamation.

Only future cases will tell whether any of that is true.

There’s Nothing in That Name

This morning, the Supreme Court delivered a decision that is a further small step in the debate about the right of litigants to privacy and the right of the public to know what goes on in our courtrooms. I blogged about these issues here and here.

The applicant in the case, A.B. v. Bragg Communications Inc., 2012 SCC 46, is a teenage victim of cyber-bullying. Someone created a fake Facebook profile using her name and picture and wrote all manner of nasty things there. In order to sue that person for defamation, she applied for a court order to compel the internet provider associated with the I.P. address that was used to create the fake profile to disclose the name of the person to whom the address belonged. As part of that application, she also requested the right to proceed anonymously and a ban on the publication of the contents of the fake profile.

The internet provider did not oppose this application, but Global Television and the Halifax Herald did oppose the application for the right to proceed anonymously and the publication ban. They succeeded both at first instance and on appeal, with the courts concluding that the applicant failed to show how the publication of her name and details of the bullying she suffered would harm her. (The media then failed to defend their position before the Supreme Court, which appointed an amicus curiae to do it. Perhaps it dawned on them, rather late in the game, that this was not the best case to defend the freedom of the press.)

The Supreme Court allowed the appeal in part, in a unanimous decision by Justice Abella, holding that evidence of harm to the individual applicant was not necessary in a case such as this to support the right of the applicant to proceed anonymously. “Objective harm”―that is, a legal presumption of harm―is sometimes enough to justify banning the publication of certain details about legal proceedings. This is a case that warrants drawing the presumption. The law is especially solicitous of children’s privacy because it recognizes their vulnerability, and “[i]t is logical to infer that children may suffer harm through cyberbullying” (par. 20). Furthermore, says Justice Abella (par. 20)

we must consider the resulting inevitable harm to children — and the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.

As for the public interest in open courts, it is not much affected by allowing a victim of cyber-bullying to proceed anonymously. Just as in sexual assault cases where the publication of the victim’s identity is prohibited, the media can still attend the hearings, see and hear the evidence, and present the details of the case, except the victim’s name, to the public. Once the applicant is allowed to proceed anonymously, there is no need for a further publication ban, says Justice Abella, because the harm that she might suffer would result from tying the allegations of the fake profile to her, and not for their mere airing.

That seems like the right decision, so far as it goes. The interesting question, however, is whether it can go further. There is some ambiguity, as is usual in common law cases, especially those addressing novel issues, about which of the arguments that the decision relies on are essential and which are not. In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

The decision makes much of the special vulnerability of children and of the special harms of cyber-bullying. But must the two be present in a case in order to trigger the presumption that harm to the victim will result from the publication of his or her name? What if the case is about old-fashioned schoolyard bullying? Or what if it’s cyber-bullying, but the victim is an adult? Justice Abella also mentions the risk that victims will be discouraged to come forward if the nasty things said about them will end up all over the media. That’s surely right, and not only in cyber-bullying (and sexual assault) cases. It affects defamation cases generally, for instance, since the media is entitled to report on the allegedly defamatory statements if they are the object of litigation. And the idea that the harm to freedom of expression and freedom the press from the anonymization of court cases is minimal can be applied in all sorts of cases, as I discuss in my previous posts on this topic.

Only future cases will tell what the courts will make of these possibilities.

What’s in a Name?

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?

The Only Thing Worse Than Being Talked About

Is being talked about in a court decision that’s available online for all to see. At least if you’ve sued a former employer, and are looking for a new job. At the Volokh Conspiracy, Eugene Volokh reports on a case in which a man who believes he lost employment opportunities because prospective employers found out about his lawsuit against a previous employer sued companies providing both general internet search and specialized legal databases for making available online materials relating to that litigation. The complaint alleged violations of a variety of statutory and common law rules, but the court dismissed all these claims. The court added that publication of matters of public record, such as court proceedings and materials is, in any event, constitutionally protected.

I think that, in these circumstances, the outcome would be the same in Canada. I cannot see how the publication of court materials, unless the court itself ordered them to remain confidential, can amount to a common law tort; nor am I aware of any statutes that would prohibit it regardless of the circumstances (more on limited exceptions shortly). The constitutional situation is a bit different, since the Canadian Charter of Rights and Freedoms does not directly apply to the common law, though it would apply to a statute.  That difference wouldn’t matter here.

In any case, what concerns me right now is not the current legal situation or the question, which prof. Volokh addresses, whether there “is an adequate justification for suppressing speech about legal documents that have been released by the courts as a public record.” (His response is negative, and I think he is right.) It is the antecedent question whether any and all legal documents should be made matters of public record.

Generally speaking, our legal system favours publicity. The publicity of judicial proceedings helps ensure the impartiality, and perhaps also the quality, of judicial work. As with other branches of government, publicity is important for accountability. Closed, secret, or inaccessible courts are a hallmark of authoritarian political systems. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the Supreme Court has held that the openness of court proceedings, including the ability of the media to report on them, is an important constitutional value.

Important, but not absolute. The usual presumption of publicity can be overturned in particular cases, where the disclosure of elements of the evidence, normally a matter of public record, may compromise the impartiality of the proceedings (for example by influencing potential jurors) or reveal privileged information, such as commercial secrets. Such cases are regarded as exceptional; importantly, a party who wants the court to make some element of the case confidential has to ask the court to do so, which can be expensive and which many will not think of doing. (For example, refugee claimants rarely ask that their cases before the Immigration and Refugee Board or the Federal Court be anonymized, although if memory serves well, they are entitled to do so.)

But there are also some categorical rules which apply automatically, without a party having to do anything. At issue in Edmonton Journal was one such rule, prohibiting the publication of all sorts of details about family law cases. The Supreme Court held that the law was much too restrictive and thus an unconstitutional restriction of the freedom of expression. But narrower restrictions exist. For instance the names of minors involved in criminal cases are not published – the defendants are known by their initials. And in Québec, family law cases are identified by a number, rather than the name of the parties, with the names of the parties and the places where they live being replaced by initials in the court’s reasons (incidentally, the Alberta statute in Edmonton Journal allowed the publication of these details; Québec’s rule is essentially its mirror image).

The idea – and I think it is a sound one – seems to be 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.

And now I’m coming back to the case I considered at the beginning of the post. So long as access to court materials, or even to judgments, was time-consuming, difficult and expensive, it mattered little that publicity was the rule in most cases. Realistically, only news media would bother accessing these records, and then only in a few cases which attracted sufficient attention to make the effort and expense worthwhile. The internet changes that. It is fairly easy, and relatively cheap or even free, to find materials (at least judgments) from any case one is interested in. Indeed, one need not even know there is a case. It is enough to google someone’s name to find court decisions involving that person. An employer who would not have gone to the courthouse to rummage through files just to see if a prospective employee had ever been involved in litigation can find this out in a matter of seconds from the comfort of his office. Indeed, he may find it accidentally – he might google an applicant’s name without the intention of finding out about the applicant’s litigation history, looking for something else – but that just comes up. However the information comes out, it can be very – and unfairly – damaging, As prof. Volokh points out,

[m]any employers would likely be wary of hiring someone who had sued a past employer, because they might view this as a sign of possible litigiousness. Even if the earlier lawsuit was eminently well-founded, a prospective employer might not take the time and effort to investigate this, but might just move on to the next candidate, especially if [the candidate] is one of several comparably well-credentialed candidates for the same spot.

So here are some questions. 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?

I don’t have answers to these questions. I would love to hear from you.