Online blackmail threatens open courts

In 2013, people who had appeared before Canadian courts started getting a nasty surprise.

When their names were plugged into search engines, sensitive personal details from their court files jumped to the top of the results.

Maybe they were HIVpositive. Maybe they had worked in the sex trade. Maybe they had gone through a custody battle and would prefer sparing their children the messy details.

With the arrival of online publication, Canadian courts had been careful to publish decisions so they were not searchable by Google.

But in 2013, a Romanian man saw an opportunity for profit. He downloaded decisions en masse, indexed them so they would appear in Google results and then charged people if they wanted to remove embarrassing personal information from his site, Globe24h.com.

In a recent ruling, Canada’s Federal Court came down hard against the Romanian site and its owner, Sebastian Radulescu, concluding he was “running a profit-making scheme to exploit the online publication of Canadian court and tribunal decisions containing personal information.”

Justice Richard Mosley ordered Radulescu to stop publishing personal information from Canadian decisions and to pay $5,000 in damages to the complainant who brought the action.

But while the Jan. 30 ruling has been greeted as a victory for privacy rights, there are concerns the decision signals a move away from the principle of open courts.

Colin Lachance, an Ottawa lawyer and CEO of the legal publisher Compass.law, said he is worried one bad actor in Romania could lead courts to curtail what they make available online.

It has long been held that open courts are necessary to build public confidence in the integrity of the system. Court records are public, but before the Internet, people had to visit a courthouse to consult them. Now, the Canadian Legal Information Institute provides free online access to databases containing thousands of decisions. Individual courts and a Quebec database offer similar access.

Jane Bailey, a law professor at the University of Ottawa, said the ruling sends “an important signal about privacy.” Before the Internet, she said, courts were open but there was “practical obscurity,” because records were public but hard to access.

“The open court principle as it operated achieved a certain balance before online records,” she said, “and it makes sense to think about how to maintain the balance between the public interest in access and the public interest in privacy.”