Can the Reasonable Person Still Be 'Highly Offended'? An Invitation to Consider the Civil Law Tradition’s Personality Rights-Based Approach to Tort Privacy

Abstract

The privacy tort’s coherent development away from the narrow “right to be left alone,” inhibited by connotations of physical space and proprietorship, may be well informed by comparative inquiry. Accordingly, this article undertakes to shine the light of comparative analysis on the dilemmas of American tort law, as they pertain specifically to privacy. If privacy continues to be defined by reference to seclusion, technological imperatives necessarily dictate that the sphere in which one can reasonably claim solitude will contract. That, in turn, augurs poorly for the prevailing expectation-driven tort standard. In sharp contrast to what might be characterized as the common law’s oftentimes rigid vision of privacy torts, the civil legal method — captivated by the French and Quebec experience surveyed here — favours a more flexible construction of actionable privacy infringements. Most importantly perhaps, privacy is deemed a “personality right” — an idea central to the civilian tradition but alien to the Anglo-American system. Removed from the “reasonable expectations” doctrine and free of express references to seclusion, civilian jurisdictions’ principled approach to civil liability (“tort”) seems better able to protect individual privacy in intangible fora (such as “cyberspace”) because it regards certain dignity-based personality rights as inalienable. Under this conceptual framework, human beings enjoy personality rights in private law by reason of their very personhood, regardless of express statutory or jurisprudential intervention, or spatial or proprietary constraints. Conceiving the right to privacy as a personality right in civil liability (“tort”), allows the civilian legal method to grasp privacy as a zone of intimacy delineated not by space or ownership but by the basic needs of personhood — as a right to preserve a state of mind of tranquility. Commensurate with privacy management in the technology age, the civilian view of privacy as a personality right merits further examination with an eye towards informing the development of privacy torts in Anglo-American law.