The Centre for Law, Technology and Society is delighted to announce that on June 6th, 2022,Kristen Thomasensuccessfully defended her PhD in Law thesis titled “Private Law & Public Space: The Canadian Privacy Torts in an Era of Personal Remote-Surveillance Technology”, written under the supervision of CLTS Faculty members Pr
Kristen Thomasen earned her JD degree at the University of Ottawa and holds a BA (Hons.) in Anthropology from McMaster University and an MA in International Affairs from Carleton University. Prior to beginning her doctoral studies, she served as law clerk to the Honourable Madam Justice Rosalie Abella at the Supreme Court of Canada and clerked for the Alberta Court of Queen’s Bench, as well as articling for Alberta Justice. She is currently an Assistant Professor of Law at the Peter A. Allard School of Law, University of British Columbia and an Associate member of the Centre.
Beyond her supervisor, Dr. Thomasen’s doctoral defence committee consisted of CLTS Faculty members Prof. Jane Bailey and Dr. Amy Salyzyn(internal examiner), Dr. Carlisle Adams, Dr. Thomas Burelli (chair), and Dr. Woodrow Hartzog (Northeastern University School of Law, external examiner).
Abstract
As increasingly sophisticated personal-use technologies like drones and home surveillance systems become more common, so too will interpersonal privacy conflicts. Given the nature of these new personal-use technologies, privacy conflicts will also continue to increasingly occur in public spaces. Tort law is one area of Canadian common law that can address interpersonal conflict and rights-infringements between people with no other legal relationship. However, building on a historical association between privacy and private property, the common and statutory law torts in Canada fail to respond to such conflicts, I argue inappropriately. Privacy is an important dimension to public space, and to supporting social interactions and relationships in public spaces. Failing to recognize public space privacy in tort law leads to an overly narrow understanding of privacy and can be considered contrary to binding precedent that says that the common law should evolve in line with (or at a minimum, not contrary to) Charter values. The Charter values of privacy, substantive equality, and expressive freedom support various reforms to the judicial understanding of the privacy torts in Canada.
Privacy, also understood as “private affairs” or “private facts”, should not be predicated on property, and in fact, can take on greater value in public spaces. Privacy interests should be assessed through a normative lens, with a view to the long-term implications of a precedent for both privacy and substantive equality. Courts should assess privacy through a subjective-objective lens that allows for consideration of the lived experiences and expertise of the parties, their relative power and their relationships. Adopting these principles into the statutory and common law torts would permit tort law to serve as a legal mechanism for addressing interpersonal, technology-mediated privacy conflicts arising in public spaces. This will be a socially valuable development as such conflicts become increasingly common and potentially litigated.