In the age of social media, are court procedures enough to protect vulnerable parties subject to a publication ban? In a recent article, researchers at the University of Zurich were able to re-identify parties in 84% of judgments studied (the Zurich Study).
Deviations from the “open court principle” often protect the vulnerable
Though the open court principle is the very soul of justice, the courts will allow parties to proceed with anonymized names when the parties are particularly vulnerable. Examples include cases involving children and sexual assault complainants. In these instances the reported decision will contain the facts sufficient to explain the animating legal principles arising from the case, but will not contain identifying information of the party.
Linking databases to learn more about its subjects
The Zurich Study focused on pharmaceutical companies as parties, but it is reasonable to assume that the same re-identification methods could compromise the anonymity of individuals using the wealth of data available through social media. People post volumes of identifying information about themselves, their family, friends, employers, and employees online. This data can combine in unexpected ways to reveal information about the subjects that they did not intend to reveal.
The researchers in the Zurich Study used a method known as data linkage. Data linkage is the procedure where users combine disparate databases containing information on the same subjects to relate the pieces of information across the databases and learn more about the subjects. These databases may not reveal sensitive personal information about the subjects on their own, but through their combination users can obtain information which was not immediately apparent from the databases in isolation.
Judgments and data linking
We live in a society more interconnected than ever. Online content about individuals is never fully in their control, but should the courts participate in producing more information about parties that society excepts from the open court principle? There exists some guidance to assist judges in determining what information to include in judgments, but judges are not experts in data analytics and it is sometimes not apparent what keen observers can deduce from general information. Furthermore, the nature and scope of available data is constantly expanding. Courts themselves are trying to make their own data more readily accessible to the public. Information which is secure today may possibly be compromised in a few years by an errant post.
Future legal considerations
Identifying individuals subject to a publication ban could result in legal sanctions from the court. With the advance of AI, it is possible that the identity of an individual subject to a publication ban is revealed merely though the collection and processing of data and not under the direct guidance of a person. Presently, researchers are already using AI to study unconscious bias in rulings. Could such altruistic research unintentionally link databases in a way that compromises a party’s anonymity? It is unclear how the courts would manage such a situation given that the party’s identity was revealed in part by the court’s own judgment.
What is clear is that social media users may unintentionally reveal more about themselves and their loved ones than they realize. Companies who use and manipulate online data should always be mindful of the privacy concerns of individuals, including their employees.