We live in strange times in which the narrative of the Right to privacy, which dominated headlines and political circles, is from the Law of privacythat is messy, piecemeal, and underdeveloped. It’s not that we don’t have a litany of privacy laws in Canada. We just don’t have the right ones.
What we particularly miss in Alberta is a broad ground in tort law for invasion of privacy.
In Canada, data protection interests underlie several laws, such as: B. the nature of defamation and deliberate infliction of nervous shock and crimes of fraud, harassment or voyeurism. Sections 7 and 8 of Canadian Charter of Rights and Freedoms Protection of privacy, albeit primarily and directly in the criminal law context. Best known are the provincial and federal data protection laws that govern the collection, use, and disclosure of information in the public and private sectors. These are the main data protection laws enforced by federal and provincial data protection officers. This is a narrower legal framework for data protection. Some provinces, including Alberta, have created a legal plea for non-consensual disclosure of intimate pictures (also known as revenge porn).
But there is a worrying loophole in the law at a time when technology advances in new and diverse ways that affect our concept of privacy. We live and interact online just like we do personally these days, and social media can be a platform for doxing, cat fishing, and other forms of online impersonation, harassment, and abuse. A person’s private Facebook or Snapchat messages can be screenshots and shared online, a person’s information posted on escort or shame websites, or images manipulated for humiliating effects (e.g. Deepfakes).
As technology evolves, so too do the possibilities and forms of data breaches. Technology can facilitate abuse by monitoring online accounts, tracking movement, recording conversations, or sharing intimate pictures. The devices can be small and difficult to see; Take the pen camera a teacher uses to film high school girls’ breasts R in Jarvis. The “Internet of Things” has improved connectivity and can be a toolkit for domestic violence, e.g. E.g. for ex-partners to lock doors remotely, to switch lights on and off and to increase the temperature in the house of an ex-partner. The nature of the threat is evolving. Robots and artificial intelligence are accelerating the embedding of technology in our lives and increasing our privacy gaps.
Some of these issues are governed by existing data protection laws, while others fall into the gray category of lawful but terrible. Tort law, however, plays a crucial role in private law by conveying social behavior and protecting fundamental rights. In the face of social upheaval, it can instigate social norms by recognizing that an interest such as privacy is at stake and by setting the rules for appropriate behavior. In addition, technology is a reminder of the central importance of privacy to our everyday experiences. Data protection enables us to participate meaningfully in society and to build trusting relationships. Tort law has often played an important role in conveying this type of space.
Alberta is also inconsistent with many other provinces. British Columbia, Saskatchewan, Manitoba, Newfoundland and Labrador all have legal grounds for torts for invasion of privacy. Quebec protects privacy in its Charter of human rights and freedoms and Civil Code. Ontario passed a common law illicit entry into seclusion Jones versus Tsige, which was tracked in Nova Scotia and paved the way for the introduction of other privacy regulations in Ontario.
The introduction of a tort of privacy is not a panacea for technology-based invasion of privacy. We are only looking for defamation to know that litigation in these cases is expensive, time consuming and rarely delivers the desired results. It is a high volume, low value, legally complex matrix. However, in order to regulate access to judicial issues, be it through express proceedings, online tribunals or other forms of support, we first need a law.
All of this means two things to Alberta. First, an invasion of privacy should be incorporated into Alberta law, whether by common law or statute. Jones has been cited in several provincial cases, so there is good reason to believe that it will be accepted by the courts here, but no decision has yet been taken on the matter. Second, Alberta has the ability to lead. The suite of data protection offerings on which Jones is based on the task of combating technology-based data protection breaches – “impoverished”, as Dr. Stuart Hargreaves cleverly described. Alberta may need an invasion of privacy, but not this one.
Jones’ Breaking into seclusion tort draws from American Restatement (second) of torts, which identifies four different privacy policies. In 2021, all four lawsuits were passed by courts in Ontario. The other three are misappropriating the image, publicly disclosing private embarrassing facts, and publicly placing a person in a false light. The attraction of these species is understandable. They are pragmatic and rule-based. You can take some kind of activity and harm (reputation, property, or emotional distress) and take a proper and orderly legal test. But it is ossified in an American legal conception of the 1960s when the lawsuits were proposed by Professor William Prosser, and because of the structure, cannot evolve with changing data protection norms and rapid technological innovations.
What was ossified? Among other things, the belief that privacy is what happens when we are withdrawn or alone, that privacy only protects deviant or intimate behavior, and that context does not matter. In the age of technology, our very existence is threatening our privacy as we cannot avoid going outside, using technology, sharing our personal information, or otherwise being disclosed. Many things that we might consider invasions of privacy, such as deepfakes, catfishing, some forms of doxing, and the expansion of content through search engines, would likely not be enforceable as an illegal act of privacy. The pies are also difficult to arrange Charter Case law on data protection, in particular on the contextual factors that courts have taken into account when assessing a reasonable expectation of data protection and weighing up competing rights.
Despite all the shortcomings of Prosser’s tort, I understand that nothing will affect access to justice more than a poorly worded tort. If the goal is to protect everyday privacy, the tort should be as safe, predictable and contained as possible. There are some options for legislative reform, but if a major overhaul of data protection law is the goal, a legal cause of action is likely the best option. Other provincial laws can be a blueprint to begin drafting, but should not be passed on a grand scale. In particular, an unlawful act of privacy should be loosely modeled on a Charter Frame. I say loosely because tort law is ultimately about making up for certain losses. As a tort, this would mean that the reasonable expectation of a data protection test is at the center of the analysis, followed by an analysis of any conflicting interests and a balance between competing rights.
Along the same lines, I advocate a data breach in Alberta and reject the simplest possibility. Our current common law practices are a patchwork solution that is reasonable when there is nothing else, but we can do better.
This comment is based on research funded by an Insight Grant from the Social Sciences and Humanities Research Council.
Dr. Emily Laidlaw is the Canadian Research Professorship in Cyber Security Law and Associate Professor in the Law School of the University of Calgary.