Last Thursday’s workshop included a fascinating debate about the nature and extent of privacy demands on courts.

In order to operate legitimately courts place a high premium on openness. To do justice courts must fully investigate and consider all the facts in a matter. Justice requires courts, practically, to consider and record many aspects of human life which are considered private in at least some societies’; sexual activity is germane to many crimminal offenses and often raised in divorce proceedings, health and disability issues are central to certain dismissal and discrimination claims but also form the subject matter of delictual proceedings.

This is a relatively new debate, privacy, in the sense of formal rules around personal data autonomy, arose in Europe in the 1970’s in response to the abilities of ICT’s to store, retrieve and process data. The anxiety is that faceless bureaucrats, or corporate operatives could , compile a large amount of data about an individual. That data, understood through the processes of the organisation would then amount to information used to make decisions about that individual. The individual would not know of the information about her, and thus would be unable to fathom the effects of that information on the organisation.

Courts on the other hand have been formally open, it was clear to those in the legal process what was being made public, and the compelling reason for that publicity. However despite being formally open court records were practically obscure, because they were (and often are) paper based. Searching court records was difficult.

Technology has changed that, making it easier for individuals to access the law, but also reducing the practical obscurity which those involved in legal cases enjoyed. In developing countries widespread access to case law became both imaginable and desirable.
Privacy advocates tend to frame the problem as a tension between autonomy and the proper functioning of courts, what I have termed open justice. Framing the problem in that way allows it to be seen in terms which are familiar to lawyers and politial theorists, a tension between the public and the private, between the legitimate objectives of the state and the rights of individuals, allowing theorists to comfortably slot in to their usual positions within those (unfinished) debates.

Copper Panel detail in the Constitutional Court, South Africa, photo taken by Paul Jacobson

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