(2018) 4 CJCCL

i

Foreword

Justice Rosalie Silberman Abella
Supreme Court of Canada

T

he Canadian Journal of Comparative and Contemporary Law has
produced yet another invaluable intellectual contribution to yet
another intellectually dynamic area of law. To tackle the privacy issues in
Data Protection is to scrutinize the past in order to make brave predictions
about an unknowable future about technology, an overgrown field with a
haphazard array of fences in need of repair.
This volume will be an outstanding source of insights for anyone who
cares about the relationship between privacy and progress, and its impact
on who we are as individuals, as a society, and as a global community.
This core mission — assessing the future of privacy in technology’s
revolutionary wake — gets careful and probing scrutiny in this volume.
Fiona Brimblecombe and Gavin Phillipson explore the implications
of the European Union’s new “right to be forgotten” found in Article
17 of the General Data Protection Regulation, and how the Strasbourg
Court’s privacy jurisprudence has adapted to the revised informational
contours. The impact of the right to be forgotten is also developed in
Jacquelyn Burkell and Jane Bailey’s article on how unredacted online
public access to court records may have a disproportionately harmful
impact on vulnerable groups, raising interesting questions about the role
of equality rights.
Ontario’s “Privacy by Design” attempts to regulate privacy through
the introduction of facial recognition technology in some existing cameras
in casinos and the expanded use of cameras in the public transit system,
offer a case study by Avner Levin into what works and what works less
well. His call for a collaborative regulatory model is echoed throughout
the volume. N.A. Moreham compares how different jurisdictions
(England, Ontario, and New Zealand) assess privacy interests in the torts
context, arguing that New Zealand’s test — the “high offensiveness”
privacy test — is ultimately ineffective and should be replaced by a test

ii

Abella, Foreword

looking at what “reasonable expectation of privacy” a plaintiff has in the
information or activity in question.
A call for greater privacy protection from ubiquitous surveillance
practices is the focus of Moira Paterson’s review of the tests and
assumptions that need to be revisited and strengthened in this context.
Megan Richardson moves us towards the internet and the profound risk
it poses not only to an individual’s privacy, but to the ability to control
his or her personal identity, and, relatedly, dignity.
Looking at how the European Union, the United States, and Canada
deal with personal information that has become public, leads Andrea
Slane to consider what role the concept of fairness should have in dealing
with the online marketplace. And Norman Witzleb and Julian Wagner
offer a comparative approach to data protection laws in Australia, Canada
and the European Union, outlining various approaches to personal
information, identity, and privacy.
The dizzying legal and policy options at play in all of these wonderfully
thoughtful articles, seem at the same time to suggest urgency and
caution. They are a timely and humbling Venn diagram of intersecting
problems, solutions, concerns, and aspirations. The implications of the
intensity, pervasiveness and speed of technological transformations are
compellingly reviewed in the articles by Brimblecombe and Phillipson
and by Patterson. The resulting need for more robust and proactive
legislative (and judicial) responses are magnetically covered in the article
by Paterson, but also in those of Burkell and Bailey, Levin, Slane, Witzleb
and Wagner. And finally, the emphatic need for humanity and dignity in
the social network universe is powerfully elucidated not only by Slane,
Burkell and Bailey, but also by Brimblecombe and Phillipson, Moreham
and Richardson.
I feel lucky to have had the chance to learn from these authors, and
congratulate them — and the editors — for enriching us with their
insights and inspiration.