14 December 2017

Privacy Publics and Suppression Order Jurimetrics

'The Public Information Fallacy' by Woodrow Hartzog comments 
The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.
In this article, I argue that the “no privacy in public” justification is misguided because nobody even knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”
If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.
'Two Years of Suppression under the Open Courts Act 2013 (Vic)' by Jason Bosland in (2017) 39(1) Sydney Law Review 25 comments
The Open Courts Act 2013 (Vic) (‘OC Act’) was introduced in response to concerns that suppression orders were granted too frequently by the Victorian courts and that problems often existed in relation to the breadth, clarity and duration of such orders. Some of these concerns were verified in a 2013 study of all suppression orders made in Victoria between 2008 and 2012. In order to assess the impact of the OC Act, this article presents the findings of a follow-up empirical study of suppression orders made by the Victorian courts in the two years following the commencement of the OC Act on the 1 December 2013. The main results show that there has been no notable reduction in the overall number of suppression orders since that time and that the OC Act has led to no improvements in terms of the scope and clarity of orders. Furthermore, while the data demonstrates a significant reduction in orders being made without sufficient end dates, it is also found that the County and Magistrates’ courts frequently make orders that they do not have the power to make.
Bosland argues that the Act followed
ongoing concerns that the use of suppression orders by the courts in that state was placing the fundamental principle of open justice in jeopardy.The media, in particular, claimed that too many suppression orders were being made in Victoria compared to other jurisdictions in Australia and that this was undermining the usual open justice rule that the media, other than in exceptional circumstances, should be unrestrained in providing fair and accurate reports of proceedings conducted in open court. The supposedly large number of suppression orders was said to be the result of orders being made on grounds not justified according to the strict requirements of the law, a view echoed by others, including the Honourable Philip Cummins, a retired Justice of the Supreme Court of Victoria.  In the period prior to the OC Act, for example, Cummins claimed that orders were often made on ‘therapeutic, prophylactic or prudential grounds falling short of the true ground of necessity’ required by the law and that many orders were superfluous due to existing restraints on publication. Alongside these concerns, problems were also said to exist in relation to the drafting of orders, with claims that many were imprecise and overly broad in scope, and often contained insufficient limitations as to their duration. These latter concerns were confirmed by this author (with Bagnall) in an empirical study of all suppression orders made by the Victorian courts between 2008 and 2012 (‘2013 Study’). However, it should be emphasised that no attempt was made in that study to assess whether allegations of unjustified orders were well founded or not. 
The OC Act, which was shaped, in part, by reference to the results of the 2013 Study, was introduced specifically to address the problems identified above. However, with a few notable exceptions set out in Part II of this article, it does so mainly by codifying and clarifying the pre-existing law, rather than by implementing substantive changes to the law of suppression. Indeed, this is consistent with the findings of the 2013 Study that the problems with suppression orders in Victoria were not the result of deficiencies in the substantive law; rather, they rested with the application of the law and with judicial practice. The main benefit of the OC Act, therefore, is in the reinforcement of the existing legal principles by placing them on a firm and accessible statutory footing. But, while the primary goal of introducing the OC Act was to modify judicial behaviour as a means of enhancing openness and accountability, there have been recent claims of little change in the overall number of suppression orders issued by the Victorian courts. On 9 November 2016, the Attorney-General of Victoria announced the appointment of the Honourable Frank Vincent, former Justice of the Victorian Court of Appeal, to conduct a review into the operation of the OC Act. 
This article contributes to the assessment of the impact of the OC Act by presenting the findings of a follow-up empirical study of suppression orders made by the Victorian courts under the OC Act in the two years following its commencement on 1 December 2013. Using the results of the 2013 Study as a baseline, this new research assesses the effectiveness of the OC Act in relation not only to the number of suppression orders being made by the various courts, but also — and perhaps more importantly — to whether it has resulted in improvements in the drafting of orders in terms of their scope, clarity and duration. 
Part II of this article provides an overview of the key reforms introduced by the OC Act. Part III sets out the results of the present study and compares them with the results of the 2013 Study. The main findings are that there has been no significant overall reduction in the rate of suppression (that is, the number of suppression orders issued) following the introduction of the OC Act and that there have been no improvements in terms of the breadth and clarity of orders. Furthermore, while there has been a significant reduction in the proportion of orders made without specified end dates, it is also found that the County and Magistrates’ courts often made orders that they did not have the power to make and that all courts frequently failed to comply with the basic drafting requirements expressly mandated in the OC Act. In light of these results, Part IV provides some comments on the rate of suppression in Victoria, examines why many of the issues identified with suppression orders in the 2013 Study continue unabated under the OC Act, and considers what might be done to ensure greater compliance with the OC Act in the future. h