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Anonymisation of personal data in written judgments

By: Mark Tottenham BL

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It is common in written judgments concerning assessment of damages in personal injuries cases for the judge to describe in some detail the ailments that the plaintiff is suffering from. These are, needless to say, essential to the determination of the issues. But it is reasonable to assume that some of the parties would not have wanted to reveal - even to some of their closest friends - the intricacies of their digestive or reproductive systems, nor the amount that they might have to spend on, say, incontinence pads for the rest of their lives.

Until the 1990s, the details in such judgments were largely confined to professional and academic legal libraries. While a prurient friend or neighbour might have sought out such publications, it is reasonable to suppose that very few did. Even if journalists covered the cases for newspapers or the broadcast media, it would be rare for them to describe the ailments of the injured party in more than general terms.

Since the advent of the world wide web, and the (entirely welcome) development of ‘Legal Information Initiatives’ such as BAILII, written judgments are available to the entire world at no charge. As a result, personal information that would otherwise have been private can readily be searched by persons who may have no reasonable interest in reading it.

With the commencement of the General Data Protection Regulation (GDPR) in 2018, most bodies are more careful about the storage and dissemination of personal information. However, as one of the cornerstones of our legal system is that justice is administered in public, it seems that no attempt has been made to anonymise or pseudonymise personal data in written judgments (except where provided by statute in cases concerning family law, mental health or a small number of other cases).

In France, attempts are now being made to apply the GDPR principles to written court judgments. As outlined in a paper by Sarah Markiewicz entitled ‘Dissemination of Legal Information: Wedding or Divorce between Open Data Movement and Implementation of Personal Data Protection Law Principles’ (delivered at the Law via the Internet Conference 2018), written court judgments are now routinely anonymised or pseudonymised in a manner consistent with GDPR principles.

This is not a perfect solution. If the court hearing has been covered in the media, it may be possible for more dogged internet researchers to link the information in the written judgment to a particular news story. Nonetheless, the personal and private information will not have been published by the State in a document that is headed with the name of the injured party.

There may always be a struggle between the principles of freedom of information on the one hand and protection of personal data on the other. But it is arguable that the courts should not add to the distress of an injured person by publishing sensitive personal information for the world to read.

First Published in Law Ireland in December 2018

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