Conflicting claims to the

right to privacy

Chantal Bernier, Counsel Dentons Canada LLP School of Graduate Studies in Public and International Affairs University of Ottawa 21.10.2014

Overview

• The established ethics of privacy

−Privacy basics

−Privacy principles

• Current conflicting claims

−Privacy yes, but…

• Applying established ethics to evolving challenges

−Where do we go from here?

Privacy basics

• What is the right to privacy?

−It’s all about control

• What is personal information?

−It’s all about identity

• Why privacy?

−Dignity and autonomy

Privacy principles

• Necessity and proportionality of collection, use and

disclosure

• User control individually, as contractual fairness,

collectively as a human right

• Transparency to ensure effective control

• Security to protect information

• Recourse to correct inaccurate and redress violations

Conflicting claim #1

• Where do you draw the line between the personal right to

privacy and the democratic right to know?

At relevance

Conflicting claim #2

• Can the right to privacy impact judicial transparency on the

Internet?

Yes, to:

• Take into account the differential privacy impact of the

Internet

• Balance public interest and personal impact

Conflicting Claim #3

• Can the right to privacy restrict the right to freedom of

expression?

Yes, where:

• It is disproportionate to restrict expression in the name of

privacy

Claim # 4

• Is personal information no longer personal on the Internet?

No:

• Personal information remains personal and legally

protected no matter the platform

• However,

− if it is available it will be accessed

−expectations of privacy are low

Claim # 5

• Should privacy take a back seat to public safety?

No, both must and can be protected through:

• Demonstration of necessity

• Proportionate use

• Security of information

• Oversight

Claim #6

• Does free Internet access give the right to collect and use

personal information for ads?

It depends:

• Non-targeted ads require minimal personal information so

are proportionate to purpose

• Targeted ads are based on personal information so must

be optional and avoid sensitive information

Claim # 7

• Can the benefits of data mining outweigh the privacy

intrusion?

Perhaps, if:

• Collective benefits can de demonstrated

• Personal impact can be minimized

Claim # 8

• Does personal accountability open the door to personal

information?

In fact, yes. Ethically, it depends.

• Fair accountability in the public interest only allows

proportionate intrusion upon privacy

So where do we go from here?

Step 1: A social debate on the ethics of privacy in a new

context of risk and modalities.

Step 2: Innovation to integrate established ethics of privacy

to new information technology and business models.

Step 3: Pragmatism to apply ethical principles to operational

processes.

Step 4: A solid ethical grounding to protect privacy in fast

changing times.