Balancing Privacy and the Open Court Principle of Family Law: Does De-Identifying Case Law Protect Anonymity?

This paper discusses the right to privacy in the context of family law cases. In balancing the open court principle against the right of the individual to remain anonymous, it is argued that there is a greater public good in maintaining transparency of the judicial process. Disclosing the personal details of individuals who use the public court system allows the public to hold the judiciary accountable for their decisions. While advocates for greater privacy would argue that the personal details of litigants have no bearing on the legal rules that emerge from cases, landmark decisions such as Murdoch v Murdoch and Pettkus v Becker demonstrate how these same details colour the facts and allow for greater empathy and public activism. This is especially relevant where citizens feel that the courts have made a wrong decision. While preserving anonymity is important to protect vulnerable parties such as children, it is difficult from a technical standpoint to maintain anonymity for those involved in public proceedings. The widespread availability of personal information online, coupled with the expansion of online case law databases, facilitates the identification of individual litigants, even if case law is anonymized. Anonymizing family law cases by default is therefore a moot exercise that should not expand beyond the need to protect vulnerable individuals