Tort-Based Protections for Data Privacy

Abstract

This chapter argues that tort law can offer better doctrinal coherence and greater normative force in protecting individuals’ data privacy, than more detailed and prescriptive regulatory regimes necessarily do. First, it outlines the structure and operation of informational privacy torts recognised in some jurisdictions, and notes some common, defining features of data protection regulation, emphasising the EU’s influential General Data Protection Regulation. It then discusses how tort law can provide more normative and doctrinal coherence and clarity in how individuals’ right to data privacy is protected. There is, through the evolution of a tort tailored to protecting informational privacy, significant capacity for analytic precision and principled reasoning in the scope of legal protection and the direct connection with the normative underpinnings of that protection. Finally, the chapter explains how tort law can provide better protection for individuals seeking to protect their data privacy. Both the ‘reasonable expectation of privacy’ threshold and the general defence allow courts to assess each case, on its facts, in a more nuanced and principled way than may be possible under regulation.