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