Date: Fri, 13 Oct 2006 14:51:28 -0600

From: Russell Brown

Subject: Liability for data security breaches

The kind of argument Tsachi is advancing is implicit in the collection of papers in Friedmann/Barak-Erez, "Human Rights in Private Law". (Incidentally, Jennifer might be interested in Peter Benson's article in that collection, however, as it considers Bhaduria at length.) I remain deeply sceptical since this sounds more like failure to confer a benefit than a creation of risk of injury to a protected legal interest. With respect to Tsachi's earlier comment, I'll grant that public law/constitutional norms might influence the content of private law rights, but is that really different than common law evolutionary adaptation? Slavery was once commonly viewed as a matter of a slaveholder's property rights, but (long before we had human rights statutes) it was eventually viewed as an injury to the slave.

Jennifer's division of powers argument is intriguing (at least to me, since I'm from the other province - besides Quebec - that lives to restrict federal intrusions into provincial spheres of responsibility). Unfortunately (and I'm probably not alone in this among our colleagues) I'm not current enough on Canadian constitutional law to comment, but I would have thought that this argument has legs, since a right of action, as a "civil" right, falls within Section 92(13). I suppose, however, that the federal government could try invoking the "national concern" branch of POGG.

Russ

>>> Tsachi Keren-Paz 10/13/2006 8:39 AM >>>

From where does the right not to be discriminated against arise? It would be hard to find a duty if there is no right. On what grounds am I not allowed to discriminate on what am I (e.g., religious affiliation in marriage/dating?).

In terms of dating, for example, some grounds for exclusion might be reasonable (sexual identity, religion) with respect to others (such as race) I would say that the exclusion is unreasonable but there is no duty of care.

Obviously, establishing duty in appropriate cases is indeed the difficult question. However, the tort of negligence has always developed new categories of duty and I don't see a principled reason why it could not or should not do so with respect to discrimination. The problem of line drawing is not any easier for the legislature than to courts. Discriminatory interactions can easily be conceived (at least at times) as active creation of risk, and not merely as failure to rescue/aid. Balancing the conflicting interests has been the traditional role of common law courts. It was the common law's individualistic bent, rather than its lack of institutional capacity or conceptual apparatus, that prevented development of judicially-crafted anti-discrimination norms.

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