Privacy, access to court documents and open justice

Abstract

The open justice principle continues to interrelate with and affect the development of privacy torts. Against this backdrop this article considers the privacy/open justice dynamic in decisions on access to court documents – focusing on those which have featured in open court. In this context privacy can and has been broadly construed to outweigh open justice reasons favouring disclosure, with the relevant principles developed pre-Campbell v MGN Ltd, when fewer privacy protections existed. Now, Campbell-type methodology offers a more structured way to assess privacy considerations when considering access. It might also provide greater backstop privacy protection, justifying less intensive scrutiny at the earlier access stage, or even proactive publication. If so, it would become important to consider the extent of reasonable expectations of privacy in material made accessible by courts. This might usefully draw on freedom of information principles, and defences applicable to court reporting.