Search engine linking court-protected names
By Rob Lamberti, AdvocateDaily.com Contributor
Search engines that use intuitive algorithms that circumvent court-ordered publication bans have a legal obligation to honour shield laws or they could be in contempt of court, says Fredericton litigator Matthew Pearn.
An Ottawa Citizen story revealed an online search engine inadvertently circumvented court bans by linking names of young offenders and victims to media stories of their court cases.
"If you release details that end up being linked to information covered by a ban, do you have some sort of moral obligation to shield these people from exposure — whether it's the identity of a young offender or a rape victim?" asks Pearn, an associate with Foster & Company.
Pearn says reporters who abide by a publication ban for their story should not be subject to a contempt of court charge — not even if a protected person is later identified through a search algorithm.
Over time, however, laws may emerge that could attempt to make the link, he tells AdvocateDaily.com.
That could be through "advancing some sort of privacy tort, intrusion upon inclusion, or publication of private facts saying that the details, presented in court but shielded by a publication ban, are now being clearly and openly linked to their identities," he says.
Pearn says technology can overcome the efforts of a court to shield a person through a publication ban.
"These algorithms deliver a result that undermines the efforts of the journalist to shield the identity of the person. The result could reveal information the reporter didn't even know about," he says.
"Search engine services should be alive to this issue and tailor their algorithms to avoid it," Pearn says, suggesting companies could be exposing themselves to contempt of court or tort action.
"I think these are individual and discrete breaches and even as a privacy tort, I don't know if there are common questions of fact to say it's a class action, but for individual claims that arise as privacy torts through civil action, those may survive," he says.
Online companies have a proprietary interest in their algorithms and should be "quick to address this because you don't want that question dragged into court so the algorithm that generated this response can become the subject of a public hearing," Pearn says.
If the ability to link doesn't change, he predicts sooner or later proprietary information "is going to become the subject of some civil hearing.”
Search engine firms "have a positive obligation, even if they weren't in the courtroom, to prevent this from happening," Pearn says.
"Regardless of whether they were in the courtroom acting as a journalist, they have a responsibility to follow the various laws that shield a party's identity or information from being disclosed."
Contempt by a cyber corporation is a serious matter, especially if the breach is being done in a systematic fashion, Pearn says.
"This is a recurring problem and you can imagine how upsetting it would be for victims of sexual assault or childhood abuse — who were meant to be shielded — to search their names and see stories pop up with all the details that were revealed in court," he says.
That has all the hallmarks of psychological harm that could be compensable, Pearn says.
"These search engine companies have to understand they created a product that delivers results to the world," he says. "They have, in my mind, an obligation to prevent that from running wild."