Tort and Data Protection: Are There Any Lessons to be Learnt?

EDPR Review, 5(4), 1-20 (2019)

UNSW Law Research Series No. 19-104

21 Pages Posted: 22 Jun 2020

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Robert Walters

Victoria University

Bruno Zeller

University of Western Australia - Faculty of Law

Date Written: 2019

Abstract

The development and evolution of data protection law is not fully realised. One challenge that has emerged is the recognition of a tort for violating a person’s personal information contrary to data protection law. The issue is that courts have found it difficult to determine and assess the harm caused to the data subject. The courts in the United Kingdom (UK) and Canada have recently developed a tort for 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 establishing 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 may fail to protect data subjects from the misus of their personal data if the law requires harm to eventuate, as is required by the tradition tort of privacy. 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 identify. Contrarily, tort law has been effective in reducing and deterring negligence in privacy related cases, strengthening the rationale for a tort in personal data over the Internet.

Keywords: Australia, Data Protection, European Union, Personal Data, Tort, United Kingdom

Suggested Citation

Trakman, Leon and Walters, Robert and Zeller, Bruno, Tort and Data Protection: Are There Any Lessons to be Learnt? (2019). EDPR Review, 5(4), 1-20 (2019), UNSW Law Research Series No. 19-104, Available at SSRN: https://ssrn.com/abstract=3630004 or http://dx.doi.org/10.2139/ssrn.3630004

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Robert Walters

Victoria University ( email )

Melbourne, 8001
Australia

Bruno Zeller

University of Western Australia - Faculty of Law ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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