Judicial notice of risk of identity theft justifies a partial publication ban or redaction, but that’s it

On August 16th, the Nova Scotia Court of Appeal overturned an order that sealed the record in a matrimonial dispute and substituted an order that favored either a partial publication ban or redaction (at the parties’ option). The case is notable because the substituted confidentiality order was only based on judicial notice of the risk of identity theft that would flow from the misuse of certain kinds of personal information.

The matter is about access to the court file in a Nova Scotia proceeding. The parties resisted a media organization’s request for access, without adducing any evidence, based on an asserted concern about identity theft. The motion judge recognized the risk, held that a partial publication ban could not be policed and held that a redaction order would be cumbersome and costly. She ordered the court file to be sealed in whole.

In overturning the sealing order, the Court of Appeal stressed that a confidentiality order must be established by evidence or by facts that are properly subject to judicial notice. In this regard, it accepted that identity theft is a risk that can be recognized on judicial notice. The Court said:

I accept that judicial notice may be taken of the social fact that “identity theft is real”, in the judge’s words.

I also accept that access to (1) unique personal identifier numbers, namely passport or Social Insurance Numbers, Health Insurance Card or driver’s licence numbers, (2) credit or debit card numbers, (3) unique property identifier numbers, namely numbers for bank accounts or other investment assets or for debt instruments or insurance policies, and serial or registration numbers for vehicles, may assist the use of identity theft to fraudulently access property.

I also accept that (4) dates of birth, (5) names of parents, (6) personal addresses, (7) email addresses and (8) telephone numbers sometimes may not already be in the public domain, and therefore access to that information in a court file possibly could assist with identity theft. I add that this record has no evidence one way or the other whether that information, for Mr. Jacques or Ms. Foster-Jacques, already is in the public domain.

The Court said the motion judge was wrong, however, to find that a partial publication ban could not be policed and that a redaction order would be cumbersome and costly. It held that there was no evidence to support these findings, which rested on judicial notice of dispositive adjudicative facts.

The Court substituted an order that let the parties opt to redact the information set out in the paragraphs quoted above, failing which, the media would be subject to a prohibition on publishing the same information. While stressing the importance of a firm evidentiary foundation for confidentiality orders, this judgment also suggests that a limited confidentiality order to protect against the disclosure or publication of personal information that is commonly used to establish one’s identity should not be difficult to obtain.

Coltsfoot Publishing Ltd v Foster-Jacques, 2012 NSCA 83 (CanLII).

[Hat tip to Peg Duncan of IT and eDiscovery.]

Case Report – BCCA orders media access to “crime boss” video post trial

On April 6th, a majority of the British Columbia Court of Appeal held that a trial judge erred by denying the media post-trial access to a videotape exhibit adduced in a criminal trial. It ordered the tape to be released with measures to be taken to protect the identities of undercover RCMP officers and others who where shown on the tape.

The video showed a confession that the RCMP extracted by use of a scenario in which an accused is asked to confess past crimes to a “crime boss.” It showed three undercover officers and identified them by their real first names. The video was shown in open court subject to a publication ban that restricted identifying the officers. Shortly after the accused was convicted, the applicants requested access to the videotape and a transcript of the same, but the trial judge denied access on the strength of an affidavit that established a likelihood of harm to the undercover officers.

Madam Justice Newbury held that the trial judge erred by balancing the benefit to be gained by releasing a video in a substantially modified form (to protect the officers’ identities) against the safety and privacy interests at stake, in effect reading out the “necessity” requirement for restrictive order endorsed by the Supreme Court of Canada in Dagenais/Mentuck. Mr. Justice Hall concurred and Mr. Justice Chiasson dissented.

Note that Madam Justice Newbury justified a permanent restriction on the publication of the officers’ identities by reference to the “perpetual availability of information on the internet.”

Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 (CanLII).

Case Report – Man C.A. affirms quashing of orders to produce media tapes

On December 8th, the Manitoba Court of Appeal affirmed the quashing of two Criminal Code production orders issued against the CBC and CTV.

The orders were for production of audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

In August 2008, Joyal J. of the Manitoba Court of Queen’s Bench considered the sufficiency of the supporting information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. He held that the informant ought to have disclosed:

  • that the police had been given prior notice of the press conference but had chosen not to attend;
  • the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
  • the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

Joyal J. held that these deficiencies, as they related to the media’s privacy interest, led to a flawed exercise of judicial discretion and quashed the production orders as unreasonable.

The Manitoba Court of Appeal held that Joyal J. articulated and applied the proper legal test, did not err in his findings of fact and did not err in finding the police search unreasonable.

Canadian Broadcasting Corporation v. Maintoba (Attorney General), 2009 MBCA 122.

Case Report – Raitt “lost recorder” judgement published

The Nova Scotia Supreme Court has published Moir J.’s decision on the lost digital recorder containing embarrassing comments made by Minister of Natural Resources Lisa Raitt. I was quoted by the National Post here, but really didn’t have much to say at the time. This is no criticism of the conclusion embodied in Moir J’s cursory (oral) judgement, but now that I’ve read it I confess to still having more questions than answers!

The scenario is made for a law school exam:

  • Conversation between MacDonnell and Raitt, Raitt a public figure
  • Recording made unknowingly and in presence of limousine driver
  • Recorder misplaced by MacDonnell in a bathroom
  • Recorder found and passed to reporter
  • Reporter contacts MacDonnell to advise of finding
  • MacDonnell says she’ll pick the recorder up, but doesn’t
  • Time passes
  • MacDonnell misplaces Ministry’s confidential documents and resigns
  • Raitt comes under scrutiny
  • Reporter listens to recording in the name of the public interest
  • Reporter gives notice of intent to publish recording

Ms. MacDonnell relied on a privacy and property based claim. Moir J. held that she had not established a case sufficient to restrain publication. Here is the core of his oral judgement:

I agree with the submission for the Herald that the recorded conversation was not private because some or all of it was heard by a department driver…

Here is where I see the restriction on prior restraint having some place in laws of invasion of privacy, if such a tort is to emerge. It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.

Bailment and conversion are torts applicable to personal property rights. The digital recorder was personal property. There is no bailment, and can be no conversion, of pure information. Information is protected as intellectual property.

Here are my questions. Wasn’t the driver bound to secrecy? Was this fatal to the expectation of privacy claim? When should poor record keeping constitute abandonment? How critical was Ms. MacDonnell’s failure to pick up the recorder as planned? Did she tell the reporter not to listen? Would that have made a difference? Did the information at issue and the public’s interest in receiving it weigh in the balance? If so, to what extent. You can start to see how the parameters of a privacy claim are very complex.

Two other points. One, the judgement creates a hierarchy of concepts: privacy seems less important than privilege and trade secret protection. I recently blogged about the Daniel Potter case here. It does the same thing. Two, whether the property torts can be used to re-gain control of information is a big issue for employers. I’ve blogged about it here.

MacDonnell v. Halifax Herald Ltd., 2009 NSSC 187.

Case Report – Ont. C.A. considers pre-trial publicity, jury contamination and the internet’s long memory

On January 26th, a 3-2 majority of the Ontario Court of Appeal held that the mandatory ban on publication of bail proceedings when requested by an accused violates the Charter-protected right to freedom of the press and is not saved by section 1. The majority read down the Criminal Code ban so that it applies only to charges that may be tried by a jury.

All members of the panel agreed that the mandatory ban breached freedom of the press. They also agreed on the purpose of the ban:  to ensure a fair trial by promoting expeditious bail hearings, avoiding unnecessary detention and allowing accused to retain scarce resources to defend their cases. The panel members differed, however, on how to apply the Charter‘s saving provision, section 1.

The majority, in judgement written by Madam Justice Feldman, held that the ban was over-broad in its application to charges that may not be tried by a jury. While finding that judges are “professional decision-makers” immune to the influence of pre-trial publication, the majority was not willing to invalidate the legislation as it applied against juries given the conflicting social science evidence on the impact of pre-trial publication on jury decisions. It held that the legislature is entitled to act upon a “reasoned apprehension of harm” in enacting laws based on such disputed domains.

The minority, in a judgement written by Mr. Justice Rosenberg, held that the conflicting evidence was a basis for striking down the ban in whole (with a 12 month suspension). The minority held that the salutary effects of the ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

Both the majority and minority made comments on the internet and the concept of practical obscurity.  The majority said:

It is also, in my view, no longer appropriate or realistic to rely on jurors’ faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story.

The minority made a similar note:

On the one hand, the salutory effect of any publication ban is undermined by the ease with which the ban can be circumvented.  On the other hand, because of the nature of the Internet, information first published at the time of the bail hearing is always accessible, right up to the time of the trial.  In other words, the court cannot always simply rely upon the fact that time will have passed from when the information was first published and that this passage of time will lessen any prejudicial effects of the information.

On the whole, perhaps all that can be said about the efficacy of publication bans in the era of mass communication and the Internet is that the salutory and deleterious effects are uncertain.

The concept of practical obscurity is one favoring the maintenance of an individual’s privacy interest despite the disclosure of information because the information can be hard to find or recall.

For more detailed commentary, see the Court’s summary here.

Toronto Star Newspapers v. Canada, 2009 ONCA 59.