Technology Mindfulness and the Future of the Tort of Privacy

Authors

Emily Laidlaw, Faculty of Law, University of Calgary

Document Type

Article

Abstract

This article investigates how to develop the tort of privacy to better address technology-facilitated abuse. The central question explored is how explicitly the role and function of technology should be engaged in a legal test. The article argues that technology is constitutive of our society, shaping our social and cultural institutions, which in turn shape the development of technology and together define the everyday ways that our privacy is enjoyed and invaded. A privacy tort should therefore directly engage with the social significance of technology—what this article frames as technology mindfulness. To develop the concept of technology mindfulness, and with the goal of law reform, the article is structured in three parts. In the first part, the current privacy torts are critically analyzed to identify their lack of suitability to address evolving technologies and abuse. In the second part, the article grapples with how to examine technology in a tort, wrestling with the tension between the value of technology neutrality in law making and the need for a technology-mindful lens. In this part, the features of a technology-mindful law are outlined. In the final part, a new tort is sketched, drawing from constitutional principles. The goal is to illustrate how to embed technology mindfulness and overcome some of the weaknesses of current law.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Laidlaw, Emily. "Technology Mindfulness and the Future of the Tort of Privacy." Osgoode Hall Law Journal 60.3 (2023) : 597-654.
DOI: https://doi.org/10.60082/2817-5069.3925
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss3/3

References

1. Emily Laidlaw is a Canada Research Chair in Cybersecurity Law and Associate Professor with

the University of Calgary's Faculty of Law. I wish to thank several research assistants for their

excellent work on this project: Rose Pappas-Acreman, Nicholas Austin, Darryl Carmichael, and Eric Rayment-Law. I also wish to thank Kristen Thomasen for feedback on an early draft of this article, the reviewers, and participant feedback at the British and Irish Law, Education and Technology Association (2019) and Law and Society (2021) conferences. This research is generously funded by a Social Sciences and Humanities Research Council Insight Grant.

2. Chris DL Hunt, "The Common Law's Hodgepodge Protection of Privacy" (2015) 66

UNBLJ 161 at 162 [Hunt, "Hodgepodge"].

3. See Privacy Act, RSBC 1996, c 373, s 1 [BC Privacy Act]

The Privacy Act, RSS 1978, c P-24,

ss 2-3 [SK Privacy Act]; The Privacy Act, RSM 1987, c P125, CCSM, c P-125 [MB Privacy

Act]; Privacy Act, RSNL 1990, c P-22, ss 3-4 [NL Privacy Act].

4. 2012 ONCA 32 [Jones].

5. See Part I, below, for examination of the different common law privacy torts. Thus far, one

or more of the privacy torts have been adopted in Alberta and Nova Scotia. For the public disclosure tort, see ES v Shillington, 2021 ABQB 739 [Shillington]. See also Racki v Racki, 2021 NSSC 46 [Racki]. For the intrusion on seclusion tort, see VonMaltzahn v Koppernaes, 2018 NSSC 192 [VonMaltzahn]. While discussed in various other cases in several provinces

and territories, there have been no decisions on the merits in other jurisdictions.

6. See The Intimate Image Protection Act, SM 2015, c 42, CCSM c I87; Protecting Victims of

Non-consensual Distribution of Intimate Images Act, RSA 2017, c P-26.9; SK Privacy Act, supra note 3; Intimate Images and Cyber-protection Act, SNS 2017, c 7; Intimate Images Protection

Act, RSNL 2018, c I-22; Intimate Images Protection Act, RSPEI 1988, c I-9.1; Intimate

Images Unlawful Distribution Act, SNB 2022, c 1. See also Emily Laidlaw & Hilary Young, "Creating a Revenge Porn Tort for Canada" (2020) 96 SCLR (2d) 147.

7. See Cynthia Khoo, Kate Robertson & Ronald Deibert, Installing Fear: A Canadian Legal

and Policy Analysis of Using, Developing, and Selling Smartphone Spyware and Stalkerware

Applications (The Citizen Lab, Munk School of Global Affairs & Public Policy &

University of Toronto, June 2019) at 4, online (pdf): The Citizen Lab [perma.cc/3M5B-WVBP].

8. See Kristen Thomasen & Suzie Dunn, "Reasonable Expectations of Privacy in an Era of

Drones and Deepfakes: Expanding the Supreme Court of Canada's Decision in R v Jarvis"

in Jane Bailey, Asher Flynn & Nicola Henry, eds, The Emerald International Handbook of

Technology-Facilitated Violence and Abuse (Emerald, 2021) 555 at 560-61.

9. 2019 SCC 10 [Jarvis SCC].

10. See Emily Laidlaw, "'CanadaCreep' Case Highlights Need for Better Privacy Laws" (5 July

2017), online (blog): The Conversation [perma.cc/LZ7W-RVNN] [Laidlaw, "CanadaCreep"].

11. See Gilad Rosner & Erin Kenneally, Privacy and the Internet of Things: Emerging Frameworks

for Policy and Design (UC Berkeley Center for Long-Term Cybersecurity, June 2018) at 5, 7-9, online (pdf): CLTC [perma.cc/U845-E9D5].

12. Rosner and Kenneally helpfully differentiate between these two types of IoT

applications. Ibid at 5.

13. Ibid.

14. See Geoffrey A Fowler, "Alexa Has Been Eavesdropping on You This Whole Time," The

Washington Post (6 May 2019), online: [perma.cc/448X-D9K3].

15. See Rosner & Kenneally, supra note 11 at 9.

16. See Haley Weiss, "Why You're Probably Getting a Microchip Implant Someday" (21

September 2018), online: The Atlantic

how-i-learned-to-stop-worrying-and-love-the-microchip/570946> [perma.cc/5HZP-2GFQ].

17. See Nellie Bowles, "Thermostats, Locks and Lights: Digital Tools of Domestic Abuse,"

The New York Times (23 June 2018), online:

smart-home-devices-domestic-abuse.html> [perma.cc/9TEX-GV58].

18. Ibid. See also Ari Waldman, Privacy as Trust: Information Privacy for an Information Age

(Cambridge University Press, 2018) at 136. As the presence of robots in our lives becomes mainstream, they create privacy vulnerabilities, especially in domestic situations. As Waldman explains, robots are "designed to cue trust." Ibid.

19. See Khoo, Robertson & Deibert, supra note 7 at 12.

20. Ibid at 6, 10-11.

21. See the example of the hacking of actor Gabrielle Union's iCloud account to steal intimate

images. See Danielle Keats Citron, "Sexual Privacy" (2019) 128 Yale LJ 1870 at 1883.

22. Ibid at 1911-12.

23. See Canada, Office of the Privacy Commissioner of Canada, Joint Investigation of Ashley

Madison by the Privacy Commissioner of Canada and the Australian Privacy Commissioner/

Acting Australian Information Commissioner, PIPEDA Report of Findings No

2016-005 (OPCC, 2016). https://doi.org/10.1088/1475-7516/2016/08/005

24. Ibid. See also Nate Lord, "A Timeline of the Ashley Madison Hack" (27 June 2017), online

(blog): DataInsider [perma.cc/ K3UD-NVVH] (timeline of Ashley Madison attack). See also Jonathan Stempel, "Ashley Madison Parent in $11.2 Million Settlement Over Data Breach" (14 July 2017), online:

Reuters [perma. cc/E7RJ-ZNBH] (Ashley Madison later settled a US class action).

25. See Adrien Gendre, "Five Years Later, Ashley Madison Data Breach Fuels New

Extortion Scam" (31 January 2020), online (blog): Vade

ashley-madison-data-breach-fuels-new-extortion-scam> [perma.cc/TT5B-R7D9]. For an example of a scam, see also Dan Goodin, "Dear Ashley Madison User, I Know Everything

About You. Pay up or Else" (1 February 2020), online: Ars Technica [perma.cc/RU7H-TH75].

26. See Bobby Chesney & Danielle Citron, "Deep Fakes: A Looming Challenge for Privacy,

Democracy, and National Security" (2019) 107 Cal L Rev 1753 at 1757-58 [Chesney

& Citron, "A Looming Challenge"]. Their definition of deepfakes is useful: "leverages machine-learning algorithms to insert faces and voices into video and audio recordings of

actual people and enables the creation of realistic impersonations out of digital whole cloth." Ibid. See also Thomasen & Dunn, supra note 8 at 560 (discussion of deepfakes).

27. See Chesney & Citron, "A Looming Challenge," supra note 26 at 1771-74.

28. See Robert Chesney & Danielle Citron, "Deepfakes: A Looming Crisis for National Security,

Democracy and Privacy?" (21 February 2018), online (blog): Lawfare [perma.cc/

KSC5-WJSH] [Chesney & Citron, "A Looming Crisis"]. See also Suzie Dunn, "Identity

Manipulation: Responding to Advances in Artificial Intelligence and Robotics" (2020) [unpublished, on file with the Osgoode Hall Law Journal].

29. See FaceApp, "About Us," online: [perma.cc/4HTR-DAHN]. This was

one of the first apps to popularize deepfakes. There are now several apps for such purposes, such as Zao, Deepfakes Qeb, and Wombo. For an example of deepfakes in action, see also Mindy Weisberger, "Watch Mona Lisa Come to Life in Startling 'Deepfake' Videos," NBC News (28 May 2019), online:

life-startling-deepfake-videos-ncna1010871> [perma.cc/SP3J-NWH8]. The regulatory challenge of deepfakes is profound, including significant cyber and national security

risks, all of which is beyond the scope of this article. For a more detailed analysis, see also Chesney & Citron, "A Looming Challenge," supra note 26; Chesney & Citron, "A Looming Crisis," supra note 28.

30. This is a quote from Nasir Memon. See William A Galston, "Is Seeing Still Believing?

The Deepfake Challenge to Truth in Politics" (8 January 2020), online: Brookings

brookings.edu/research/is-seeing-still-believing-the-deepfake-challenge-to-truth-in-politics>

[perma.cc/S9KL-K8T8].

31. See Microsoft, "Seeing AI in New Languages," online: [perma.cc/6MJ2-QDJ8]; Ellen Braunstein, "At This Holocaust Museum, You Can

Speak with Holograms of Survivors," The Times of Israel (8 January 2018), online: [perma.cc/84CH-N4Y2]. Chesney and Citron note that deepfakes have been used for art and education. "A Looming Challenge," supra note 26 at 1771.

32. See Dunn, supra note 28. Dunn cites statistics that 96 per cent of deepfakes target women. These are the same targets for intimate image abuse. See also Mary Anne Franks & Ari Ezra Waldman, "Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions" (2019) 78 Md

L Rev 892 at 893-94.

33. See Dunn, supra note 28.

34. See Hunt, "Hodgepodge," supra note 2 at 164-78. In addition, many forms of privacy

abuse might justify a criminal charge, such as fraud, extortion, harassment, impersonation, or non-consensual disclosure of intimate images.

35. Ibid at 181-84.

36. See Stephen Aylward, "The Idea of Privacy Law: Jones v. Tsige and the Limits of the Common Law" (2013) 71 UT Fac L Rev 61 at 73. See also Robert C Post, "The Social

Foundations of Privacy: Community and Self in the Common Law Tort" (1989) 77 Cal https://doi.org/10.2307/3480641

L Rev 957 at 1010. Post comments that all of this prompts a flurry of activity-a quest

to rationalize the value of privacy, to discover its functions and reasons, to dress it up in

the philosophical language of autonomy, or to dress it down in the economic language of information costs. But this is to miss the plain fact that privacy is for us a living reality only because we enjoy a certain kind of communal existence. Our very "dignity" inheres in that existence, which, if it is not acknowledged and preserved, will vanish, as will the privacy we cherish (ibid).

37. Lisa M Austin, "Privacy and Private Law: The Dilemma of Justification" (2010) 55 https://doi.org/10.7202/045084ar

McGill LJ 165 at 165.

38. See Paula Giliker, "A Common Law Tort of Privacy? The Challenges of Developing Human

Rights Tort" (2015) 27 Sing Ac LJ 761 at 762.

39. Supra note 3.

40. See Jones, supra note 4 at para 54. The court commented that "no provincial legislation

provides a precise definition of what constitutes an invasion of privacy. The courts in

provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes."

41. BC Privacy Act, supra note 3, s 1(1). The language is identical for Saskatchewan and

Newfoundland and Labrador. See SK Privacy Act, supra note 3, s 2; NL Privacy Act, supra

note 3, s 3(1). Different language is used in Manitoba. See MB Privacy Act, supra note 3,

s 2(1) ("[a] person who substantially, unreasonably, and without claim of right, violates the privacy of another, commits a tort against that other person").

42. Part I of the Constitution Act, 1982, s 8, being Schedule B to the Canada Act 1982 (UK),

1982, c 11 [Charter].

43. Supra note 3, s 1(2).

44. Ibid, s 1(3).

45. See e.g. SK Privacy Act, supra note 3, s 3.

46. I am drawing here from BC's Privacy Act. Supra note 3, s 2(2). But similar provisions are

in other provinces. See MB Privacy Act, supra note 3, s 5; NL Privacy Act, supra note 3, s 5; SK Privacy Act, supra note 3, s 4.

47. See art 3 CCQ [Civil Code].

48. CQLR c C-12, s 5.

49. Ibid.

50. See European Convention for the Protection of Human Rights and Fundamental Freedoms,

4 November 1950, 213 UNTS 221, art 8 (entered into force 3 September 1953) [ECHR].

51. See e.g. Karen Eltis, "Can the Reasonable Person Still Be 'Highly Offended'? An Invitation

to Consider the Civil Law Tradition's Personality-Rights Based Approach to Tort Privacy" (2008) 5 U Ottawa L & Technology J 199. See also Karen Eltis, "Is 'Truthtelling' Decontextualized Online Still Reasonable? Restoring Context to Defamation Analysis in the Digital Age" (2018) 63 McGill LJ 553. https://doi.org/10.7202/1066336ar

52. Civil Code, supra note 47, art 3.

53. Supra note 4.

54. This is particularly evident in the structure of defamation burdens of proof. In Canada and

the United Kingdom, once a plaintiff establishes that a statement was defamatory, published, and refers to them, the burden shifts to the defendant to avail themselves of various defences. See Grant v Torstar Corp, 2009 SCC 61 at paras 66-68 [Grant]; Reynolds v Times Newspapers Ltd, [1999] 4 All ER 609. In the United States, the burden remains on the plaintiff in order

to preserve the right to freedom of expression. For example, if you are a public figure, then a plaintiff must establish malice. See New York Times Co v Sullivan, 376 US 254 (1964).

55. See Jones, supra note 4 at paras 61-62, 64. In part, as discussed later in this article, the United

Kingdom's tort of misuse of private information is a narrow media intrusion cause of action.

56. For discussion of UK caselaw, see ibid at paras 61-62. After reviewing the Commonwealth

approach, the court simply stated:

[i]n my view, it is appropriate for this court to confirm the existence of a right of action

for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society (ibid at para 65).

See also ibid at para 21.

57. In explaining the elements, the court emphasized that "this cause of action will not open the

floodgates." Ibid at para 72. As Hunt commented, the court "borrowed uncritically from American law." See Chris DL Hunt, "A Critical Appraisal of the Ontario Court of Appeal's Decision in Jones v. Tsige" (2012) 37 Queen's LJ 665 at 665 [Hunt, "Critical Appraisal"].

58. See Jones, supra note 4 at paras 65, 70. See William L Prosser, "Privacy" (1960) 48 Cal L

Rev 383 at 389.

59. § 652B (1977) [Restatement]. See Jones, supra note 4 at para 21.

60. Supra note 58 at 389. See Restatement, supra note 59.

61. See Danielle Keats Citron, "Mainstreaming Privacy Torts" (2010) 98 Cal L Rev 1805 at

1822-24 [Citron, "Mainstreaming"]; Waldman, supra note 18 at 96.

62. See Waldman, supra note 18 at 96.

63. US Const, amend 1.

64. See Neil M Richards, "The Limits of Tort Privacy" (2011) 9 JTHTL 357 at 376.  

65. See Citron, "Mainstreaming," supra note 61 at 1824.

66. Charter, supra note 42.

67. Jones, supra note 4 at para 39. See also ibid at paras 40-46.

68. Ibid at paras 43, 46. Note that the SCC praised Jones as a good example of the creation

of a new common law tort. For this, see Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 243 [Nevsun].

69. GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71.

70. 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March

1976). See Jones, supra note 4 at para 44.

71. Ibid at para 68.

72. Ibid at paras 67-68.

73. Aylward, supra note 36 at 73.

74. Supra note 4 at para 71.

75. Hunt, "Critical Appraisal," supra note 57 at 675.

76. Jones, supra note 4 at para 72.

77. See e.g. Vanderveen v Waterbridge Media Inc, 2017 CarswellOnt 21225 (WL Can) (Sm Cl

Ct); Patel v Sheth, 2016 ONSC 6964; Stevens v Walsh, 2016 ONSC 2418.

78. Jones was mentioned to underscore the importance of privacy in CBI Home Health (AB)

Limited Partnership and AUPE and influenced an assessment of privacy damages in a grievance arbitration Alberta v AUPE in 2012. See Re CBI Home Health (AB) Limited

Partnership and AUPE, 2015 CarswellAlta 740 (WL Can) at para 17 (ALRB); Alberta v

AUPE, 2012 CarswellAlta 896 (WL Can) at paras 17-20 (Arbitrator: Andrew CL Sims).

79. Supra note 5. Jones has also been considered in Manitoba and New Brunswick, but there has been no decision on the merits. Jones has also been referred to in cases in Alberta and British Columbia.

80. Athans v Canadian Adventure Camps Ltd, [1977] OJ No 2417 (QL) (HC).

81. Jane Doe 464533 v ND, 2016 ONSC 541 [ND], default judgment set aside, 2016 ONSC

4920. The tort was later adopted in Jane Doe 72511 v NM, 2018 ONSC 6607 [NM].

82. NM, supra note 81 at para 99 [emphasis added]. In NM, the court adopted Justice Stinson's modification in ND. Ibid at para 98; ND, supra note 81 at para 46. Note in ND the plaintiff

was also initially successful at a claim for breach of confidence and intentional infliction of mental distress as well. This was recently adopted in Alberta in Shillington, supra note 5.

83. For a discussion of this, see NM, supra note 81.

84. Justice Stinson quotes the Restatement, writing that "[e]very individual has some phases of his

life and his activities and some facts about himself that he does not expose to the public eye." ND, supra note 81 at para 42, citing Restatement, supra note 59, § 652D. For a discussion

on this point, see Sarit K Mizrahi, "Ontario's New Invasion of Privacy Torts: Do They Offer Monetary Redress for Violations Suffered via the Internet of Things?" (2018) 8:1 Western J Leg Studies at 13-15.

85. 2019 ONSC 7279 [Yenovkian].

86. Ibid at paras 170-71. For an examination of the tort, see Fraser Duncan, "Illuminating

False Light: Assessing the Case for the False Light Tort in Canada" (2020) 43 Dal LJ

605. He concludes that the judiciary should be cautious about adopting the tort in

other provinces, noting that even if the tort is narrowly framed, its impact on freedom of expression and the work of the media might support its rejection. Ibid at 634-35.

87. See Hunt, "Hodgepodge," supra note 2; Hunt, "Critical Appraisal," supra note 57. See also Chris DL Hunt, "From Right to Wrong: Grounding a 'Right' to Privacy in the 'Wrongs' of

Tort" (2015) 52 Alta L Rev 635 [Hunt, "Right"]. https://doi.org/10.29173/alr26

88. See Stuart Hargreaves, "Relational Privacy & Tort" (2017) 23 Wm & Mary J Women &

L 433 at 442-43. An interesting case concerning intimate images is Roque v Peters. 2022 MBQB 34. Here, claims were made pursuant to the common law, privacy legislation, and

intimate images legislation.

89. Post, supra note 36.

90. Ibid at 964, 985-86.

91. Ibid at 967.

92. Ibid at 968.

93. See Hunt, "Critical Appraisal," supra note 57 at 665; Hargreaves, supra note 88 at 435.

94. See Karen Eltis, "Piecing Together Jones, A.B. and Cole: Towards a 'Proportional' Model

of Shared Accountability in Workplace Privacy" (2015) 18 CLELJ 493 at 502 [Eltis,

"Piecing Together"].

95. See Citron, "Mainstreaming," supra note 61 at 1809, 1825.

96. "Contextual Expectations of Privacy" (2013) 35 Cardozo L Rev 643 at 648.

97. Jones, supra note 4 at para 68. See also ibid at para 67.

98. See ND, supra note 81 at para 46; NM, supra note 81 at paras 97-98.

99. See e.g. Kaplan v Casino Rama, 2019 ONSC 2025. However, Owsianik v Equifax Canada

Co has put in doubt whether an intrusion on seclusion claim can be the basis for a class action for a data breach, because there was no intrusion by Equifax but rather by third-party hackers. 2021 ONSC 4112.

100. See Citron, "Mainstreaming," supra note 61 at 1809.

101. [1998] 1 SCR 591.

102. Ibid. See also Elizabeth Paton-Simpson, "Privacy and the Reasonable Paranoid: The

Protection of Privacy in Public Places" (2000) 50 UTLJ 305. https://doi.org/10.2307/825907

103. This may be, in part, because Aubry was specific to the Quebec Charter and a narrow set of

facts of a picture of a child in a public place.

104. For a discussion of cases, see Hargreaves, supra note 88 at 442-43.

105. Jarvis SCC, supra note 9.

106. Hargreaves, supra note 88 at 435.

107. Several scholars criticize the spatial focus. See e.g. Paton-Simpson, supra note 102; Aylward,

supra note 36 at 72; Hunt, "Critical Appraisal," supra note 57 at 682-83; Hargreaves, supra note 88 at 435.

108. Hunt, "Critical Appraisal," supra note 57 at 675-79.

109. See Waldman, supra note 18 at 13, 22-23.

110. "'I've Got Nothing to Hide' and Other Misunderstandings of Privacy" (2007) 44 San

Diego L Rev 745.

111. See Jones, supra note 4 at para 72 ("[i]t is only intrusions into matters such as one's

financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive").

112. See Giliker, supra note 38 at 772-74.

113. Supra note 54.

114. Jones, supra note 4 at para 73. For discussion, see Aylward, supra note 36 at 80.

115. Supra note 5.

116. Ibid at para 40.

117. See Grant, supra note 54 at paras 28, 33; WIC Radio Ltd v Simpson, 2008 SCC 40 at

para 1 [WIC Radio].

118. See NA Moreham, "Abandoning the High Offensiveness Privacy Test" (2018) 4

CJCCL 161 at 177.

119. See Citron, "Mainstreaming," supra note 61 at 1809-10 (explaining that in the United

States, courts have interpreted the tort narrowly by imposing limiting rules such as the highly

offensive test).

120. Moreham, supra note 118 at 166.

121. Hunt, "Critical Appraisal," supra note 57 at 692.

122. Ibid at 689-90.

123. See Emily B Laidlaw, "Online Shaming and the Right to Privacy" (2017) 6:1 Laws at 3. https://doi.org/10.3390/laws6010003

Citron explores this idea giving the example of an old print newspapers, while now stories

live on in perpetuity online and are searchable. See "Mainstreaming," supra note 61 at 1810.

124. See Post, supra note 36 at 962.

125. See Moreham, supra note 118 at 187. Hunt argues that the test should be maintained but

simply interpreted broadly, to be something like the new seriousness threshold in the United Kingdom. See Defamation Act 2013 (UK), c 26, s 1; Hunt, "Critical Appraisal," supra

note 57 at 691.

126. Recall that privacy is an intentional tort, and it would have to be established that the defendant intended the consequences. An example of where this might be easy to establish is

deepfakes. For an examination of AI and tort law, see Kristen Thomasen, "AI and Tort Law" in Florian Martin-Bariteau & Teresa Scassa, eds, Artificial Intelligence and the Law in Canada (LexisNexis Canada, 2021) at 105-10.

127. This is of course the focus of data protection reform, but that is focused on whether there

is a right to be delisted from search results, not the civil liability of search providers and

other platforms for amplification, nor of individuals who posted it there. Danielle Citron gives the example of Erin Andrews, who was secretly filmed undressing by a stalker, and the video went viral and continues to be available today, and victims of pedophiles whose videos remain in circulation. See "Mainstreaming," supra note 61 at 1813-14.

128. See Khoo, Robertson & Deibert, supra note 7 at 43.

129. See Laidlaw & Young, supra note 6.

130. This was the case of @CalgaryCreep. For a discussion of this case, see Laidlaw,

"CanadaCreep," supra note 10. The individual also posted upskirting photos and was ultimately charged with voyeurism and an unrelated child pornography charge. But the bulk of the photos that he posted online were of women walking in public and were focused on intimate regions of their bodies (ibid). Consider, as a comparison, images of intimate parts of bodies, posted or consumed not for sexual purposes, but to mock.

131. See Yenovkian, supra note 85 at para 171. As Justice Kristjanson writes, "[t]he wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person's privacy right to control the way they present themselves

to the world" (ibid).

132. Supra note 4 at para 67. 133. ND, supra note 81.

134. Ibid at para 16.

135. Ibid at para 44.

136. See supra note 6.

137. 2017 ONCA 778 [Jarvis ONCA].

138. At least, that is how I frame their approach. See Emily Laidlaw, "R v Jarvis, A Technologically

Mindful Approach to the Meaning of Reasonable Expectation of Privacy" (26 February

2019), online (blog): Ablawg [perma.cc/EC5K-SL27] [Laidlaw, "Jarvis"].

139. Criminal Code, RSC 1985, c C-46, s 162(1).

140. Jarvis ONCA, supra note 137 at paras 103-108.

141. See Jarvis SCC, supra note 9 at paras 62-63 ("[w]hile evolving technologies may make

it easier, as a matter of fact, for state agents or private individuals to glean, store and disseminate information about us, this does not necessarily mean that our reasonable expectations of privacy will correspondingly shrink").

142. Ibid at paras 39-40, 62-63.

143. Ibid at para 41.

144. Ibid at paras 59, 63. See also Thomasen & Dunn, supra note 8 at 568. Thomasen and

Dunn argue that the Court should have done more to address systemic inequalities in the reasonable expectation of privacy analysis.

145. See Chris Reed, "Taking Sides on Technology Neutrality" (2007) 4 https://doi.org/10.2966/scrip.040307.263

SCRIPT-ed 263 at 272-75.

146. Carys J Craig, "Technological Neutrality: Recalibrating Copyright in the Information Age"

(2016) 17 Theor Inq L 601 at 605.

147. See e.g. Reed, supra note 145 at 264-65. Reed discusses the 1997 US Framework for Global

Electronic Commerce. See Bert-Jaap Koops, "Should ICT Regulation be Technology-Neutral" in Bert-Jaap Koops et al, eds, Starting Points for ICT Regulation: Deconstructing Prevalent

Policy One-Liners (TMC Asser Press, 2006) at 78 [Koops, "ICT"]. Koops further

discusses the UK "E-Principles." See also Ilse Marthe Van Der Haar, The Principle of

Technological Neutrality: Connecting EC Network and Content Regulation (University of

Tilburg, 2008) at 41-42. Van Der Haar discusses the European Commission's 1999 "Communications Review."

148. Koops, "ICT," supra note 147. See Reed, supra note 145 at 265.

149. Koops, "ICT," supra note 147.

150. Ibid at 82-88.

151. See Reed, supra note 145 at 266.  

152. Ibid at 266-67. The idea of agnosticism is drawn from Graham Smith's conception. "Are

Techlaw Principles in the Ascendency?" (2014) 96 Intellectual Property Forum 18. See also

Winston J Maxwell and Marc Bourreau's conception of technology neutrality. "Technology Neutrality in Internet, Telecoms and Data Protection Regulation" (2015) 21 Computer & https://doi.org/10.2139/ssrn.2529680

Telecommunications L Rev 1 at 1.

153. See e.g. EC, Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts, COM/2021/206. It calls AI a "family of technologies." Ibid

at para 1.1. Michael Birnhack refers to these laws as having a "technological mindset," citing laws focused on RFID. See "Reverse Engineering Informational Privacy Law" (2012) 15

Yale JL & Technology 24 at 24, 52. See also Illinois Biometric Information Privacy Act, 740

ILCS ch 14 § 5.

154. EC, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995

on the protection of individuals with regard to the processing of personal data and on the free

movement of such data, [1995] OJ, L 281/31.

155. Birnhack, supra note 153 at 69.

156. Koops, "ICT," supra note 147 at 87. As Koops comments, "[a] general principle of law

making is that the law should be sustainable" (ibid). See Reed, supra note 145 at 268, 275-76; Brad A Greenberg, "Rethinking Technology Neutrality" (2016) 100 Minn L Rev 1495 at 1512.

157. Paul Ohm explores this argument. "The Argument against Technology-Neutral Surveillance Laws" (2010) 88 Tex L Rev 1685 at 1691. See also Greenberg, supra note 156 at 1513.

158. See Ohm, supra note 157 at 1691-93; Reed, supra note 145 at 275-56.

159. See Greenberg, supra note 156 at 1513.

160. Birnhack makes this insight. See supra note 153 at 33.

161. It is beyond the scope of this article to explore cyber-regulatory theories. See Chris Reed

& Andrew Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar, 2018). Reed

and Murray provide an exploration of the evolution of cyber-separatist, paternalist, and communitarian theories of internet regulation.

162. See Birnhack, supra note 153 at 34-45. Birnhack explores what he calls the

socio-technological view and advocates identification of the values embedded in technology

before deciding on a regulatory course of action.

163. HLA Hart, The Concept of Law, 3rd ed (Oxford University Press, 2012) at 126-27. The

connection to Hart and technology neutrality was made by Birnhack. Supra note 153 at 37-38; Greenberg, supra note 156 at 1529-30.

164. Greenberg talks about Hart's interpretive dilemma as this idea of a penumbra. Greenberg,

supra note 156 at 1529.

165. Birnhack, supra note 153 at 38.

166. See Greenberg, supra note 156 at 1530.

167. Ohm, supra note 157 at 1694.

168. See Koops, "ICT," supra note 147 at 87-88.

169. See Ohm, supra note 157 at 1696.

170. R v Tessling, 2004 SCC 67 at para 25 [Tessling].

171. See Daniel J Solove, "A Taxonomy of Privacy" (2006) 154 U Pa L Rev 477. Solove's https://doi.org/10.2307/40041279

taxonomy is influential. See also Bert-Jaap Koops et al, "A Typology of Privacy" (2017) 38 U Pa J Intl L 483. This is a more recent and compelling typology, which seeks input from multiple jurisdictions to capture a broader array of conceptions of privacy.

172. See Lyria Bennett Moses, "Recurring Dilemmas: The Law's Race to Keep up with

Technological Change" [2007] 2 U Ill JL Technology & Policy 239; Birnhack, supra

note 153 at 39. Birnhack concludes that technology-neutral laws are equivalent to Hart's standards, and technology-specific laws are equivalent to rules. Technology-neutral

laws, therefore, "rely on others to interpret the law and apply it to particular concrete circumstances" (ibid).

173. Ibid.

174. Ibid at 28; Greenberg, supra note 156 at 1543-46.

175. Ibid.

176. See Koops, "ICT," supra note 147 at 87.

177. Ibid at 11. Koops quotes the Earl of Northesk using this wonderful phrasing when criticizing a UK statute: "[I]n its strident effort to be technology neutral, [the Regulation of Investigatory Powers Act] often coveys the impression that either it is ignorant of the way in which current technology operates, or pretends that there is no technology at all."

178. See Rosner & Kenneally, supra note 11 at 8.

179. Craig, supra note 146. See also Gregory Hagen, "Technological Neutrality in Canadian

Copyright Law" in Michael Geist, ed, The Copyright Pentalogy: How the Supreme Court

of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa

Press, 2013) 307.

180. Craig, supra note 146 at 603.

181. Ibid at 606-608.

182. Ibid at 608-11.

183. Ibid at 611. The reliance on analogies (and failure) is a long running problem in technology-related areas. See ACLU v Reno, 521 US 844 (1997) at 853. In this case, the

Internet was famously described thus:

The Web is thus comparable, from the readers' viewpoint, to both a vast library including

millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers (ibid).

184. Craig, supra note 146 at 612.

185. Ibid at 612-15.

186. Ibid at 612.

187. Ian Kerr & Jenna McGill, "Emanations, Snoop Dogs and Reasonable Expectations of

Privacy" (2007) 52 Crim LQ 392 at 396, 407. https://doi.org/10.3917/etu.074.0392

188. Ibid at 407, 414-16.

189. See Landon Winner, "Do Artifacts Have Politics?" (1980) 109 Daedalus 121.

190. Ibid at 127.

191. Ibid at 131. Winner uses the example of nuclear technology.

192. Ibid at 127-28.

193. This example was taken up by Lawrence Lessig. See e.g. Lawrence Lessig, Code and

Other Laws of Cyberspace (Basic Books, 1999); Lawrence Lessig, Code: Version 2.0

(Basic Books, 2006).

194. Winner, supra note 189 at 123.

195. Ibid at 124.

196. Ibid at 126. Winner observes that "[w]hat we see here instead is an ongoing social process

in which scientific knowledge, technological invention, and corporate profit reinforce each other in deeply entrenched patterns that bear the unmistakable stamp of political and economic power."

197. See Ann Filmer, "How the Mechanical Tomato Harvester Prompted the Food Movement" (24 July 2015), online (blog): UC Davis Department of Plant Sciences

[perma.cc/H7HW-BKRV].

198. Winner, supra note 189 at 131.

199. Ibid at 128.

200. Ibid at 122. Winner describes technological determinism as naive: "This view provides an antidote to naive technological determinism - the idea that technology develops as the sole

result of an internal dynamic, and then, unmediated by any other influence, molds society

to fit its patterns." The theory that Winner refers to is social determination of technology, meaning that technology does not matter, only the socio-economic context in which the technology is used. His approach charts a somewhat middle path.

201. Ibid at 135.

202. See generally Donna J Haraway, "Modest_Witness@Second_Millenium" in Donald

MacKenzie & Judy Wajcman, eds, The Social Shaping of Technology, 2nd ed (Open University Press, 1999) 41 at 42.

203. Actor network theory (ANT) is foundational to this approach, but its complexity is beyond

the scope of this article. The value of ANT for mapping various regulatory and governance approaches has been richly explored by internet scholars. See especially Reed & Murray, supra note 161; Andrew Murray, The Regulation of Cyberspace: Control in the Online Environment

(Routledge-Cavendish, 2007).

204. SS Strum & Bruno Latour, "Redefining the Social Link: From Baboons to Humans" (1987) 26 Soc Science Information 783 at 789. For a brief exposition on baboon social structure, see https://doi.org/10.1177/053901887026004004

ibid at 786-90.

205. Ibid at 791. The authors explore it through identification of a trend, from baboons'

"complex" sociality to humans' "complicated sociality." Ibid at 790-93.

206. Ibid at 796. Strum and Latour state, "Thus technology becomes one way of solving the

problem of building society on a larger scale. In this sense even modern technology

is social. It represents a further resource in the mobilization of individuals in the

performation of society."

207. Darryl Cressman, "A Brief Overview of Actor-Network Theory: Punctualization,

Heterogeneous Engineering & Translation" (April 2009) [unpublished] at 10, online (pdf):

Simon Fraser University Centre for Policy Research on Science and Technology [perma.cc/RFR7-BKGQ].

208. See Samuel D Warren & Louis D Brandeis, "The Right to Privacy" (1890) 4 https://doi.org/10.2307/1321160

Harv L Rev 193.

209. See Campbell v MGN Ltd, [2004] UKHL 22 [Campbell].

210. Supra note 4.

211. See Winner, supra note 189 at 124. Winner uses the example of Napoleon redesigning city

streets in Paris to prevent an uprising.

212. See Craig, supra note 146 at 627. Further, Craig's approach to technological neutrality is

rooted in relational theories, which refer to the idea that that copyright, or legal rights more generally, can be analyzed in terms of "the ways they structure relationships."

213. Ian Kerr, "Schrödinger's Robot: Privacy in Uncertain States" (2019) 20 Theor Inq L 123 at https://doi.org/10.1515/til-2019-0005

130, quoting Jennifer Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2012) at 35.

214. Ibid at 129. See also Valerie Steeves, who unpacks Westin's theory, showing that it has

a relational element when the full text is examined. See "Reclaiming the Social Value

of Privacy" in Ian Kerr, Valerie Steeves & Carole Lucock, eds, Privacy, Identity and

Anonymity in a Networked World: Lessons from the Identity Trail (Oxford University Press, 2009) 191 at 195-96.

215. Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life

(Stanford University Press, 2010) at 127, 132. Nissenbaum's theory is that "a right to

privacy is neither a right to secrecy nor a right to control but a right to appropriate flow of personal information" (ibid). Context is defined as "structured social settings characterized by canonical activities, roles, relationships, power structures, norms (or rules), and internal values (goals, ends, purposes)" (ibid).

216. See Waldman, supra note 18 at 67, 72.

217. Hargreaves, supra note 88 at 460.

218. Steeves, supra note 214 at 197-98, 204-205. https://doi.org/10.1016/j.geomorph.2013.02.009

219. See Waldman, supra note 18 at 34, 37 (explaining that sharing is a necessary part of

social interaction).

220. Steeves, supra note 214 at 207.

221. Kristy Hughes, "A Behavioural Understanding of Privacy and its Implications for Privacy

Law" (2012) 75 Mod L Rev 806 at 822. https://doi.org/10.1111/j.1468-2230.2012.00925.x

222. See Hargreaves, supra note 88 at 460. See also Waldman, supra note 18 at 37-39. Waldman

draws from Erving Goffman that social boundaries are managed both by the one sharing (what, to whom, et cetera) and one receiving the information (inattention, discretion).

223. See e.g. Nick Sage, "Relational Wrongs and Agency in Tort Theory" (2021) 41 Oxford J Leg https://doi.org/10.1093/ojls/gqab009

Stud 1012; Ernest Weinrib, The Idea of Private Law (Harvard University Press, 1995). Sage provides an excellent overview of relational approaches to tort law and related challenges, although the focus of the article is primarily on dissecting a Kantian theory of tort law as an agency framework. Weinrib's work is also foundational in this area.

224. Benjamin C Zipursky, "Rights, Wrongs, and Recourse in the Law of Torts" (1998) 51

Vand L Rev 1 at 16.

225. Zipurksy identifies the private disclosure and false light torts as premised on a disclosure of

information by the claimant to the defendant. Ibid at 17-18.

226. Hargreaves, supra note 88 at 462.

227. Ibid at 435-36. Hargreaves draws from feminist legal theory to advocate that privacy can

"only itself be meaningfully achieved within a dense network of relationships." See also Kerr, supra note 213 at 129-32.

228. Kerr, supra note 213 at 131. Nissenbaum identifies that one way there is a relationship between contexts is nesting, such as an elementary school is within education, within a neighbourhood, et cetera. Nesting is key because the norms that govern a context might

be different. See supra note 215 at 136. As Laurent Sacharoff explains, within a network of relationships, privacy operates as widening circles, with the least privacy for those closest

to us, and the most privacy for those we have a more distant relationship with. This is not always the case-we might be more comfortable sharing medical information with a doctor and financial information with a banker than with a close friend. Further, when we share things with friends, we know there is a risk that it will be leaked. However, the expectation

is that the information stays within one tier. See Laurent Sacharoff, "The Relational Nature

of Privacy" (2012) 16 Lewis & Clark L Rev 1249 at 1271-72; Hargreaves, supra note 88

at 435-36. Hargreaves indicates that "a privacy loss is something that lessens our ability to engage others or modulate our exposure within this network of relationships" (ibid).

229. Waldman, supra note 18 at 45.

230. See Jones, supra note 4 at para 72.

231. Jarvis SCC, supra note 9 at para 59.

232. Ibid at para 63.

233. See Laidlaw, "Jarvis," supra note 138.

234. Jarvis SCC, supra note 9 at paras 62-63.

235. Ibid at para 89.

236. Ibid at para 90.

237. Ibid at paras 5, 29.

238. Ibid at para 73.

239. Ibid at para 74.

240. Ibid at para 75.

241. Ibid at para 76.

242. Ibid at paras 78-82.

243. Ibid at paras 83-84, 88.

244. See Chris Tenove & Heidi Tworek, Trolled on the Campaign Trail: Online Incivility and Abuse

in Canadian Politics (UBC Centre for the Study of Democratic Institutions, 2020).

245. Access to justice in resolution of privacy and defamation cases has been a focus of some of my scholarship. See e.g. Laidlaw & Young, supra note 6; Emily B Laidlaw, "Re-Imagining Resolution of Defamation Disputes" (2018) 56 Osgoode Hall LJ 162. https://doi.org/10.60082/2817-5069.3390

246. See generally Hughes, supra note 221 at 832. Steeves carefully unpacks Westin, noting that

Westin roots privacy "in everyday social interaction." See Steeves, supra note 214 at 199.

247. 2016 ONCJ 35 [Elliot].

248. See Lior Strahilevitz, "A Social Networks Theory of Privacy" (2005) 72 U Chicago L https://doi.org/10.2139/ssrn.629283

Rev 919 at 971. However, see ibid at 953-57 (discussing sociological research about how information spreads through networks). Strahilevitz would likely disagree with my approach, as he proposes that the privacy inquiry is empirical, not normative, and currently courts approach it empirically but in a "casual, careless and confused manner" (ibid at 921).

249. Ibid at 921, 988.

250. See Suzie Dunn, Technology-Facilitated Gender-Based Violence: An Overview (Centre

for International Governance Innovation, 2020) at 16-20, online (pdf): CIGI

cigionline.org/publications/technology-facilitated-gender-based-violence-overview>

[perma.cc/7C62-K252].

251. Austin, supra note 37 at 165.

252. Stuart Hargreaves, "Jones-ing for a Solution: Commercial Street Surveillance and Privacy

Torts in Canada" (2014) 3 Laws 388 at 390. https://doi.org/10.3390/laws3030388

253. See Giliker, supra note 38 at 762.

254. Hunt, "Right," supra note 87 at 656, citing Peter Cane, The Anatomy of Tort Law (Hart

Publishing, 1997).

255. Hunt, "Right," supra note 87.

256. Ibid at 657-59.

257. Craig, supra note 146.

258. See Hunt, "Right," supra note 87 at 659-60.

259. Some scholars have advocated for a Charter-based tort of privacy. See Hunt, "Critical

Appraisal," supra note 57 at 686-89 (advocating for the UK approach and that it is consistent with Charter jurisprudence); Mizrahi, supra note 84 at 33-34.

260. Supra note 4 at para 46.

261. See Jarvis SCC, supra note 9; R v Marakah, 2017 SCC 59; R v Spencer, 2014 SCC 43;

R v Mills, 2019 SCC 22. https://doi.org/10.55975/VNWG7823

262. Charter, supra note 42.

263. See Grant, supra note 54 at para 46.

264. ECHR, supra note 50, art 8(1).

265. While the indirect horizontal effect of the ECHR is broadly parallel to the indirectness of the

application of the Charter to private law, it is phraseology of section 8, rooted in criminal

law, that makes it so different to Article 8. See e.g. von Hannover v Germany, No 59320/00, [2004] VI ECHR 41; von Hannover v Germany (no 2) [GC], No 40660/08, [2012] I ECHR 399; Peck v United Kingdom, No 44647/98, [2003] I ECHR 123.

266. R v Edwards, [1996] 1 SCR 128 at para 31. https://doi.org/10.1016/S0022-3182(99)70413-9

267. See Jane Bailey, "Framed by Section 8: Constitutional Protection of Privacy in Canada"

(2008) Can J Corr 279 at 284.

268. See Tessling, supra note 170 at para 32. The questions articulated in Tessling do not translate

to tort law. They include the place and subject matter of the search, whether it was in public, whether the subject matter was abandoned or controlled by a third party, any technology used in the search and its reasonableness, and the information revealed from the search.

269. Giliker, supra note 38 at 782-83.

270. Ibid at 783.

271. Jared Mackey, "Privacy and the Canadian Media: Developing the New Tort of 'Intrusion

upon Seclusion' with Charter Values" (2012) 2:1 Western J Leg Studies at 11.

272. [1986] 1 SCR 103 [Oakes]. The idea of loose grafting is from Eltis. See "Piecing Together,"

supra note 94 at 510.

273. See Charter, supra note 42, s 1. It reads, "The Canadian Charter of Rights and Freedoms

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

274. ECHR, supra note 50. Indeed, the drafting of section 1 of the Charter was influenced by the proportionality criteria in the ECHR. See A Wayne Mackay, "Freedom of Expression: Is It All

Just Talk?" (1989) 68 Can Bar Rev 713 at 716-19.

275. [1995] 2 SCR 1130.

276. See Eltis, "Piecing Together," supra note 94 at 512.

277. I have not explored damages in this article, but I am influenced to model privacy similarly to

defamation, so that damages are presumed.

278. Mackey, supra note 271 at 11. 279. [1994] 3 SCR 835 [Dagenais]. 280. Ibid at 877. Dagenais states that

[a] hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights

of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets

of rights (ibid).

281. Ibid at 878. For the broadened test, see R v Mentuck, 2001 SCC 76.

282. 2012 SCC 72 [NS].

283. Ibid at para 9.

284. See Grant, supra note 54; WIC Radio, supra note 117 at para 1.

285. See especially Wainwright v Home Office, [2003] UKHL 53 at paras 3-4, 26-27. In this case,

the plaintiffs were visiting an inmate, and to do so, they had to subject themselves to a strip search to prevent the inmate from obtaining drugs.

286. Campbell, supra note 209 at paras 14, 17. In Campbell, the House of Lords held that the breach of confidence action had evolved to the point that it does not require a relationship of

trust and that the values enshrined in Articles 8 and 10 of the ECHR (privacy and freedom of expression) were part of the breach of confidence action.

287. (UK), c 42.

288. Campbell, supra note 209. For discussion, see also Giliker, supra note 38 at 765.

289. I usually refer to it as a tort of misuse of private information. Over the years there has been

some debate about whether it is a tort, because of its roots in breach of confidence. However, in Vidal v Google, the UK Court of Appeal confirmed that breach of confidence and an

action for misuse of private information are separate causes of action, and the latter is a tort

for the purposes of service out of jurisdiction (noting "it simply gives the correct legal label to [an action] that already exists." Vidal v Google, [2015] EWCA Civ 311 at para 51. For broad discussion of this issue, see Giliker, supra note 38.

290. [2008] EWCA Civ 446 [Murray]. Although Murray is a Court of Appeal decision, it played

a key role in unifying the various approaches of the House of Lords justices to a single test. This test has been subsequently cited in the United Kingdom as the definitive test for the tort of misuse of private information.

291. This is similar to the totality of circumstances test for a section 8 Canadian Charter analysis.

However, Canadian jurisprudence takes a normative approach to assessment of reasonable expectation of privacy, unlike the British factual approach in misuse of private information tort. Ibid at para 41. See also generally Jarvis SCC, supra note 9 at para 68.

292. Murray, supra note 290 at para 36. https://doi.org/10.1086/204357

293. Ibid at para 40.

294. See Giliker, supra note 38 at 765, 774.  

295. The United Kingdom concern with media intrusions is culturally significant and evident

in the 2011-2012 Leveson inquiry. See "The Leveson Inquiry" (last modified 22 Jan

2014), online: Leveson Inquiry: Culture, Practice and Ethics of the Press

[perma.cc/QZV5-SPSQ].

296. Giliker, supra note 38 at 773.

297. Ibid at 772.

298. As Hunt comments, "[i]t surely makes more sense to align Ontario's privacy tort with this

body of law (upon which, it should be remembered, it is initially based) than it does to import American tests." "Critical Appraisal," supra note 57 at 689.

299. Paul Wragg, "Protecting Private Information of Public Interest: Campbell's Great Promise,

Unfulfilled" (2015) 7 JML 225 at 226. https://doi.org/10.1080/17577632.2015.1099844

300. Ibid at 231.

301. Ibid at 238. Wragg's criticism was scathing, commenting that "the maxim lacks analytical

bite. The phrase has become a sort of refuge in which to make idiosyncratic judgments about the quality of speech, usually accompanied by the stern moral disapproval that it is prurient interest only."

302. Ibid at 226. He states that the tort does not instruct on "the weight of a public interest

claim…judges do not balance, but, instead, apply the simple rule that public interest expression trumps privacy, and so claims fails where it is at stake."

303. Grant, supra note 54 at paras 99-109.

304. See Wragg, supra note 299 at 234.

305. See Moreham, supra note 118.

306. See Racki, supra note 5. Also see analysis above where I query whether the use of the public

interest test does the job of balancing competing rights in a non-hierarchical way.

307. See Strahilevitz, supra note 248 at 932.

308. Jarvis SCC, supra note 9 at paras 68-70; Tessling, supra note 170 at para 42.

309. This insight is from Nissenbaum. Supra note 215 at 138, quoting Christina Bicchieri,

"Words and Deeds: A Focus Theory of Norms" in Julian Nida-Rumelin & Wolfgang Spohn, eds, Rationality, Rules and Structure (Springer, 2000) 153 at 156. https://doi.org/10.1007/978-94-015-9616-9_10

310. Ibid.

311. See Post, supra note 36 at 1010. Post comments that tort law illuminates "the extreme

fragility of privacy norms in modern life. The fragility stems not merely from our ravenous appetite for the management of our social environment, but also form the undeniable prerogatives of public accountability" (ibid).

312. See Russell Brown, "Rethinking Privacy: Exclusivity, Private Relation and Tort Law" (2006)

43 Alta L Rev 589 at 606.

313. Ibid at 608.

314. As he explains, in Dworkin's view, the answer was to enable morality to guide interpretation

of the law. Ibid, n 106.

315. See Austin, supra note 37 at 175-83. She identifies a second limiting function through

denial of any difference between private and confidential information, such that the cause of action is narrowed.

316. Hughes, supra note 221 at 813-14.

317. Strahilevitz, supra note 248 at 931. On vulnerable groups, see Moira Aikenhead, "A

'Reasonable' Expectation of Sexual Privacy in the Digital Age" (2018) 41 Dal LJ 273.

I am influenced here by Aikenhead's analysis that objective tests such as the reasonableness standard are problematic when assessing a crime against women where there is a disconnect "between the experiences of claimants and the experience of those who frame the doctrine

and make decisions." Ibid at 282, quoting Rosemary Hunter, "Law's (Masculine) Violence:

Reshaping Jurisprudence" (2006) 17 L & Critique 27 at 38-39. https://doi.org/10.1007/s10978-006-0002-z

318. Hughes, supra note 221 at 813.

319. This is drawn from insights of Post about civility rules, that "civility rules can exist only where social life has the density and intensity to generate and sustain such rules." Post, supra

note 36 at 1009.

320. The idea that tort law is "a technique for influencing human behaviour" is controversial. See

Peter Cane, "Tort Law as Regulation" (2002) 31 Comm L World Rev 305 at 310.

321. Hughes, supra note 221 at 813-14.

322. Aylward, supra note 36 at 82; Mackey, supra note 271 at 13-14.

323. Aylward, supra note 36 at 82-83.

324. Mackey, supra note 271 at 12-14.

325. See Hunt, "Critical Appraisal," supra note 57 at 686-87. Mizrahi was influenced by Hunt in

her proposal. See Mizrahi, supra note 84 at 33-34.

326. Hunt, "Critical Appraisal," supra note 57 at 687.

327. Ibid at 688.

328. Giliker, supra note 38 at 785.

329. Austin, supra note 37 at 204.

330. Hargreaves, supra note 88 at 463.

331. Ibid at 464.

332. See Waldman, supra note 18 at 109, 114.

333. See Hunt, "Critical Appraisal," supra note 57 at 689.

334. Kerr, supra note 213 at 131.

335. See Hunt, "Critical Appraisal," supra note 57 at 692. He comments, "The law does not vindicate just any expectation of privacy, but only those that are reasonable in the

circumstances." Ibid [emphasis in original].

336. Ibid at 689.

337. Hughes, supra note 221 at 824-27.

338. Ibid at 824-25.

339. Ibid.

340. Ibid at 827-28.

341. Ibid at 831-32.

342. See Murray, supra note 290.

343. NS, supra note 282.

344. Of course, it is debatable whether the analysis should mirror the steps in the Charter

(subjective-objective), or as I suggest here, per Hughes, objective-subjective. Supra note 221.

345. See Eltis, "Piecing Together," supra note 94.

346. See Wragg, supra note 299 at 234.

347. Hargreaves, supra note 88 at 463.

348. See generally Haraway, supra note 202 at 42.

349. See R v Salituro, [1991] 3 SCR 654. This case states that "[t]he judiciary should confine

itself to those incremental changes which are necessary to keep the common law in step with

the dynamic and evolving fabric of our society." See also Nevsun, supra note 68. This case

provides the three requirements for a court to recognize a new tort (necessity, response to a wrong, and appropriate change to legal system). This was applied in Alberta to recognize the tort of public disclosure of private embarrassing facts. See Shillington, supra note 5.

350. Using the language of Justice Sharpe, "we are presented in this case with facts that cry out for

a remedy." Jones, supra note 4 at para 69.