In this article, the term anonymity or confidentiality order will be used to denote any court order, which in any way restricts access to or disclosure of any form of information or proceeding, including but not limited to sealing order, publication ban and secrecy orders.
What is a Sealing Order?
A Court order that restricts access to or disclosure of any record or document filed in a legal proceeding. A sealing order may be specific, relating only to specified documents or general covering all documents in a Court file. A sealing order usually applies for a time-bound period only.
It is also known as an order of confidentiality or secrecy order; and an underlying principle is that a sealing order is the exception, not the rule.
What is a Publication Ban?
A Court order that restricts publishing or making public specific information, record or document filed in a legal proceeding. Publication bans are typically used to protect a victim or witness’ identity in criminal cases. They are used to protect the identity of youth aged 18 years and below in many different kinds of legal proceedings. A Publication ban also protects sensitive evidence in a case, information that could create a security risk or information that could put a police officer, juror or police informant’s life in danger.
In a sexual assault case, a publication ban means that it is an offence to publish, broadcast or send any information that could identify the victim or witness in the case, even if they give their permission to do so.
The public generally has a right to follow Court proceedings and that includes the right to view and make copies of records of a case within the Court file. However, some Court files are sealed for anonymity simply because of the nature of the proceedings. In family law for example, many jurisdictions will seal from public access to the following:
- Court records of family and divorce files;
- Court files involving children for instance, child protection proceedings
- Court files involving the criminal prosecution of a minor.
When can a Court order a Publication Ban?
Courts can order publication bans to protect the identity of a victim, witness or other person participating in the justice system. A publication ban may be used to:
- Embolden victims and others to report offences such as sexual offences that are normally under-reported due to either underlying stigma or fear.
- Encourage witnesses who are afraid to testify.
- Protect the privacy of other justice system participants.
- Protect vulnerable witnesses, including children and victims of crime
Generally, parties are not given carte blanche either to seal documents related to a settlement agreement or to withhold documents they deem so related. Instead, the trial court – not the parties themselves – examines every such request involving the sealing of court papers and determines specific documents or records are to be sealed. Only after a very thorough and detailed review by the Court can a Confidentiality Order be executed.