Description

Privacy thinking, particularly in North America, has been dominated by private law categories. Tort law conditions us to look for harms and injuries associated with privacy violations, even when we are not dealing with a tort action. Property law conditions us to think about individual control over spaces and personal information while understandings of trespass deeply shape search and seizure doctrine. This paper argues that this influence of private law categories on our understanding of privacy is problematic. Privacy is best understood as protecting the conditions of self-presentation and self-presentation does not easily connect with the ideas of harm and autonomy that underpin our standard private law categories: it sounds in a different register. This is important because our views of private law represent one way of dealing with questions of power, whether as between individuals or as between individuals and the state; privacy is emerging as one of the central ways in which we frame issues of power in the information state — if our old categories mislead us then we need to adopt new ones.

About The Speaker

Lisa Austin is an associate professor at the Faculty of Law at the University of Toronto. She holds both a law and doctoral degree in philosophy from the University of Toronto. Prior to joining the faculty, she served as law clerk to Mr. Justice Frank Iacobucci of the Supreme Court of Canada. Professor Austin’s research and teaching interests include privacy law, property law and legal theory. She is the co-editor (with Dennis Klimchuk) of Private Law and the Rule of Law (Oxford 2014). Her work has appeared in a number of leading journals including Legal Theory and Law and Philosophy and has also been cited by the Ontario Court of Appeal and the Supreme Court of Canada.