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5 Eur. Data Prot. L. Rev. 500 (2019)
Tort and Data Protection Law: Are There Any Lessons to Be Learnt?

handle is hein.journals/edpl5 and id is 540 raw text is: 500 | Tort and Data Protection Law Tort and Data Protection Law: Are There Any Lessons to Be Learnt? Leon Trakman, Robert Walters and Bruno Zeller* The development and evolution of data protection law is notfully realised. One challenge that has emerged is the recognition of a tortfor violating a person's personal information contrary to data protection law. The issue is that courts havefound it difficult to determine and assess the harm caused to the data subject. The courts in the United Kingdom (UK)1 and Canada2 have recently developed a tortfor infringing privacy in personal data. What has emerged is that courts in those two countries have begun to establish some key principles to underpin a tort violating privacy, by providing guidance on measuring the ensuing harm. That tort is also developing in the United States. This article argues that other common law jurisdictions, notably Australia, should consider going down the same pathway, by estab- lishing a privacy tort over the Internet. Such a tort in data protection will provide a higher level of control to data subjects over their personal data and deter entities from misusing that data. However, that tort mayfail to protect data subjectsfrom the misuse of their per- sonal data if the law requires harm to eventuate, as is required by the tradition tort of pri- vacy. This must be considered with caution because, unlike traditional notions of a tort in privacy, a privacy violation of over the Internet may take weeks, months or years to identi- fy. Contrarily, tort law has been effective in reducing and deterring negligence in privacy related cases, strengthening the rationalefor a tort in personal data over the Internet. Keywords: Australia, Data Protection, European Union, Personal Data, Tort, United Kingdom 1. Introduction Over the past few years, a global community of In- ternet users have become increasingly aware of the abuse of their personal data in the absence of effec- tive data protection laws. That use, and conceivable risk of abuse, of personal data can be rationalised on economic grounds. As Michael Rustad and Thomas Koenig argue, the selling, transferring, transmitting, and manipulation of personal data is the lifeblood of DOI: 10.21552/edpl/2019/4/8 Leon Trakman B. Com, LLB (Cape Town); LLM, SJD (Harvard). Professor of Law and Former Dean, Faculty of Law, University of New South Wales, Sydney. Robert Walters LLB (Victoria), MPPM (Monash), PhD Law (Victoria), Lecturer Victoria Law School, Victoria University, Melbourne, Adjunct Professor, European Faculty of Law, The New University, Slovenia, Europe. Bruno Zeller B. Com, B. Ed, Master of International Trade Law (Deakin), PhD (The University of Melbourne). Professor of Transnational Commercial Law, University of Western Australia. Adjunct Profes- e-commerce today. Those that engage in these activ- ities can do so both legally, in compliance with na- tional and supranational law in capturing, using and disclosing personal data, and illegally, they can act legally, disclosing personal data to the broader pub- lic without the consent of the data subject(s).' How- ever, Rustand and Koenig go onto argue that these il- legal activities ordinarily extend beyond the reach of a tort action. Common law courts have also been re- luctant to stretch the tort for intruding upon privacy sor Murdoch University, Adjunct Professor Sir Zelman Cowan Centre, Victoria University Melbourne. For correspondence: <robert.walters2@live.vu.edu.au>. 1 Vidal-Hallandothers v Google Inc [2015] EWCA Civ 311. 2 jones v Tseige [2012] ONCA 32. 3 Michael Rustad and Thomas Koenig, TowardA Global Data Privacy Standard (Legal Studies Research Paper Series Research Paper 18-16, Suffolk University, Boston Law School, 2018) 10-19. EDPL 4|2019