Identified Family Law Judgements on the Web

[Roger Clarke]

The 'Sunday Telegraph' is a Sydney tabloid.  Its front-page story today, 12
May, is about sensitive identified information in the form of judgements of
the Family Court being available on the Internet.  The reports fill most of
pages 1 and 2, with a pointer to a lawyer's column on p.162.

[No, I *don't* normally read the Sunday Telegraph;  but I half-heard a
radio interview following on from it, and then saw the front page in the
local petrol station ...]


The material in question appears to be that indexed at:
http://www.austlii.edu.au/au/cases/cth/family_ct/recent-cases.html

There are about 100 judgements listed there, dated between July 1995 and
March 1996.  I randomly chose one, and it happened to be a case, which was
reported on in this morning's Canberra Times, about a father precluded from
taking his child, who is in his mother's custody, to a church of his
choice.  For the voyeur and the fan-zine editor, there are much juicier
cases than that one.

At a quick glance, the newspaper articles seem to be remarkably responsibly
written.  They highlight the fact that publishing identified details from
Australian Family Law Court proceedings is strengstens verboten.  Yet the
Court itself appears to have infringed the spirit of its own governing
statute, by making the judgements available through one of the most open
channels available.

The web-site, the Australian Legal Information Institute (AustLII), is
probably the largest and the most successful electronic source of legal
materials anywhere in the world.  (One of its two Co-Directors, Graham
Greenleaf is a linker - albeit a quiet one, and one who's probably in the
air at the moment, coming back from a privacy conference in Canada.  Mmmmm,
I wonder if any of that's a breach of confidence on my part ...).


This raises a whole swag of issues:

-  presumably publishing on the web is subject to the same laws as
   publishing via any other channel or medium - defamation, confidence,
   anti-discrimination, obscenity, privacy, etc. [yes, I'm being hopeful,
   but any analysis has to start *somewhere*].  (Anyone got Stuart
   Littlemore's email address, to get a gratis, unbinding opinion?)

-  presumably the Court is subject to some kinds of non-disclosure
   requirements in relation to identified data.  (It's probably not
   feasible for it to be subject to the same clauses as everyone else, so
   maybe there's a slip in the design of the legislation);

-  presumably the publisher is the Family Court;

-  presumably AustLII and its ISP (which is probably a University) are
   merely common carriers, and have no direct responsibility for content,
   until and unless material on the site in breach of the law is brought to
   their attention [okay, so I'm being naive - see qualification above];

-  there is a significant public interest in judgements being available
   to the public, and the Internet/Web is already one of the most
   appropriate channels.  (AustLII and the Family Court are to be
   congratulated, etc.);

-  there is a significant privacy interest in personal data from such
   judgements *not* being publicly available;

-  to publish the judgements sans identifying data is not simple, e.g.:
   (a)  cases are traditionally identified using the names of the parties;
   (b)  replacing the names of the parties with pseudonyms would be simple
        enough, but there's quite a rich set of data in such a judgement,
        and the scope exists (e.g. through indirect references and
        correlation among the various data), in at least some cases, for
        the assiduous reader to interpolate, or just guess, who the
        pseudonym refers to.
   Hence absolute privacy protection and publication of judgements are
   mutually exclusive;

-  there may be no precedent for de-identifying judgements [but, then
   again, what do they do when an ASIO or ASIS operative is involved?];

-  de-identifying judgements will cost money that the Family Court will of
   course claim it hasn't got, and which in the current climate it isn't
   likely to get (unless AustLII's Andrew Mowbray and Geoffrey King can
   come up with yet more artificially intelligent software to perform it
   automatically).

My feel for it is that this is pretty important stuff to linkers generally,
so if you're making a comment about a general principle, I suggest it be to
link as a whole;  if in doubt, just send it to me.


Roger Clarke              http://www.anu.edu.au/people/Roger.Clarke/
Xamax Consultancy Pty Ltd, 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel:  +61  6  288 6916                       Fax:   +61  6  288 1472

Visiting Fellow, Faculty of          Email:  Roger.Clarke@anu.edu.au
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