Maintaining the principle of open justice : privacy and the open court rule
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Transparency and consistency of judicial decision making is a prerequisite to the operation of the principle of open justice in all common law legal systems. However, the rapid implementation of digital law reporting, giving rise to free access to law and its movement, the consequent increased levels of publication and dissemination of legal information on the internet, has brought about unintended consequences for the effective application of that principle. Whereas in the past, the open court rule operated on a theoretical level, where court decisions were effectively available only to legal practitioners and some academic institutions by subscription, today the open court rule operates at a very practical level, where judgments are readily and freely accessible, posing real risks to privacy. One such risk is that once ‘published’ on the internet, personal information obtained from members of the public and those involved in court proceedings, is published in perpetuity, making the ability to exercise control over personal information impracticable. There is significant potential for misuse and abuse. Powerful search engines are able to instantly locate specific information with minimum effort. This is important, particularly in light of serious issues relating to identity theft, disclosure of personal information to third parties, issues relating to reputation, economic loss and failure to lead a private life. This thesis examines the interaction of the open court rule and privacy in the context of the digital dissemination of judicial decisions, with a specific focus on the common law and with reference to the free access to law and its movement. It is suggested that the principle of open justice is comprised of a number of important sub-elements or rules working together in symbiosis, two of which are the central focus of this thesis - privacy and the open court rule. This thesis argues that privacy should not be treated as being in conflict with the principle of open justice, but rather is better conceptualised as an exception to the open court rule. There are several important reasons for this, including the fact that privacy has always existed alongside the open court rule and that privacy is not the same as secrecy. The thesis proposes practical and analytical dimensions of privacy protection expressed through the open court rule and in line with the Declaration on Free Access to Law and the Hague Conference Guiding Principles, in order to regulate personal information for the maintenance of the principle of open justice and the rule of law. The thesis does not propose that the principle of open justice be altered. On the contrary, it is essential that a presumption of openness flowing from the open court rule remains in place and that the principle of open justice remains intact. To ensure this outcome and to administer justice, courts may adopt and adhere to policies designed to protect individual privacy regarding the disclosure of judicial information on the world wide web. This thesis suggests such changes at both a practical and theoretical level.
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