Making a Case for Privacy as a Human Right

Maia Stevenson

Being a law student interested in privacy rights, I frequently hear the following two comments, respectively:

Only people who have something to hide are worried about privacy”,


Privacy is a concern for the privileged”.

I disagree with both comments.

Before I interned with the Privacy, Technology, and Surveillance Project at the Canadian Civil Liberties Association this summer, and before I began law school, I had a fairly robust sense of why I disagreed with the comment that privacy is only a concern for those who are breaking the law.

I disagree because of an appreciation for the value of political dissent and because of an unwillingness to fully welcome any government, including a modern, liberal, democratic one, into one’s home, personal relationships, and inner intellectual life. While as Canadians, we may not feel like we live in a police or surveillance state, one where activists, political dissidents, and other citizens are spied upon and persecuted, such realities are close enough at hand[1] to warrant appropriate safeguards for Canadians’ privacy.

It is not only drug traffickers and child pornographers who value a right to privacy: other political, religious, moral, artistic, and personal opinions and expression, especially those that deviate from a norm, are stifled or self-censored when citizens do not believe that they have a space in which to exist, develop, and share, shielded from the eye of the state, the public, or their peers.[2] Even if you don’t believe that you will never be in need of this sphere of privacy, the fact remains that our political and legal systems are built upon principles of freedom; they are strengthened when citizens have the theoretical capability of experimenting with opinions and ideas, without fear of serious repercussion. Privacy law protects the mind of the citizen as the most fundamental realm of individual privacy; it is not a crime to think about breaking the law, for example.

As for the comment that privacy is a concern only of the privileged…

Perhaps I hear this comment made in part because nowadays the phrase “privacy rights” calls to mind a locked iPhone containing encrypted communications, an embarrassing Internet browsing history, and online banking passwords. Not exactly the stuff of “human rights”.

Or maybe we find it hard to place value on something we regularly and freely relinquish to corporations in the name of convenience, efficiency, and connectivity.

Whatever the reasons, I agree that if we’re abstractly ranking Charter rights Maslow’s hierarchy style, then privacy rights seem to intuitively come second to other human rights; I think, the idea goes, that it is only after one has secured more basic human rights that the value of a private life starts to take form.

However, it is misleading to think of human rights in distinct silos. Issues of equality, race, and class overlap frequently with issues of privacy. Invasions of privacy by the state as they occur on the ground in Canada disproportionately affect the members of poor, racialized communities. The degree of privacy one enjoys is correlated to their wealth and historic interaction with the state: how advanced is your technology, how long is your driveway, how high is your fence, are you a guest, tenant or property owner, how good is your lawyer, how assertive of your rights is it safe for you to be in front of an armed policeman?

The CCLA is intervening in a case at the Supreme Court of Canada this autumn in which the police, without reason or warrant, walked into the backyard of a young black man, and after an exchange, arrested his friend/guest.[3] This occurred in a social housing complex in the neighborhood I lived in this summer in Toronto. To the CCLA and others, this case raises important issues at the intersection of privacy, race, and class:

In Canadian law, the Edwards test is used to determine whether or not someone has a “reasonable expectation of privacy” (REP) in a space. According to this test, the type of property and the control and ownership of that property (or lack thereof), factor greatly in the determination of the REP. The result is that the privacy of those who can prove a certain type of residency (exclusive occupation of a space, ownership) is more readily recognized than the privacy of those in other types of residency (non-exclusive occupation, non-ownership). Someone who lives in a social housing complex or an apartment building, someone who is temporarily living rent free at a friend’s or partner’s residence, or someone who doesn’t have a place to live at all, likely has less of a right to privacy than someone with a fence, a long driveway, and space reserved exclusively for themselves. Logically, this answer to the question of “what was your reasonable expectation of privacy?” makes sense: I live in the country, my driveway is a kilometer, I have clearly demarcated property lines; suffice to say I would be very shocked to encounter anyone but my family in my backyard. But are logical answers enough of a reason to continue using a question that yields discriminatory results, in an area as important as the state’s interaction with citizens?

This is but one example of how “privacy rights” are not free-floating, second-order human rights. To say that privacy is a concern of the privileged is to assume that we all experience “rights and freedoms” in the same way. The privacy that a citizen is afforded is closely related to the respect her state has for her, her human dignity, and her freedom, all of which are subject to differential treatment.



[1] Russia, China, Turkey, Saudi Arabia, for example.

[2] For scholarly work on the importance of privacy, see: James Rachels, “Why is Privacy Important?” (1975) 4 Philosophy & Public Affairs; Jean Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002); Julie Inness, Privacy, Intimacy, and Isolation (New York: Oxford University, 1996); Stanley Benn, A Theory of Freedom (Cambridge: Cambridge University Press, 1988); Robert Gerstein, “Intimacy and Privacy” (1978) 89 Ethics.

[3] You can read R v Le, 2018 ONCA 56 here:

Cyber-Violence Against Women & The Perpetrator’s Right to be Forgotten?

Maia Stevenson

Last February, I published a post on the Canadian Civil Liberties Association (CCLA)’s student-run blog, “Rights Watch”. The post covered and translated an original story from Radio-Canada about a young man who had pled guilty to the criminal offence of sharing an intimate image of others without their consent. The man received an absolute discharge, meaning that practically, the only legal consequence he suffered was a criminal record for one year.

Many of us, if not all, have been confronted with the variety of violence experienced by women and girls on the Internet. In my second week interning at the CCLA I had the opportunity to attend RightsCon, an international conference on human rights in the digital age. As I learned in more detail at a panel called “Global Perspectives on Technology Facilitated Violence Against Women and Girls”, cyber- or online-violence against women and girls is increasing across all continents, seemingly regardless of culture or development-status and it includes everything from persistent text messages, to threats from strangers on social media platforms, to the non-consensual distribution of intimate images and videos.

Intimate photo- or video-communication over the Internet is a recent but explosive trend, especially among young adults and teenagers, a population that is arguably the least equipped to deal with the psychological and social trauma associated with so-called “revenge porn” or blackmail that weaponizes privately shared intimate images. Stories like those of Canadians Amanda Todd and Rehtaeh Parsons abound: women and girls humiliated into depression by the non-consensual sharing or their intimate images, the “revenge porn” or “cyberbullying” of angry exes, casual flings, or online predators.[1]

While law-enforcement struggle to keep up with the “wild west” that is anonymous crime on the Internet, images involving girls and young women under 18-years of age are at least legally considered child pornography and hence illegal to create, possess, or distribute. However, until relatively recently it did not constitute a crime to non-consensually share an intimate image of a woman over 18 years of age.

A 2013 survey of adults (18-54) found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex online, with 60% of the threats being carried out. Provincial and federal governments have responded to this gap in Canadian criminal and civil law and to increasing awareness of cyber-violence against women and girls with attempts to shine a light on this dark part of the Internet.

In 2015, Canada enacted its contested Bill C-13, the Protecting Canadians From Online Crime Act, which, among other things, criminalized the non-consensual sharing of intimate images. While to many it makes sense to criminalize harmful and invasive online behavior, others question whether criminalization will achieve the desired long-term cultural effects. How do we transform the “widely-held (if often implicit) attitude that people, particularly young women, who engage in sexual conduct have somehow degraded or diminished themselves and are therefore suitable subjects for mockery or humiliation”?[2]

In any case, criminalizing a behavior certainly sends a message. Under the criminal offence created in 2015, s.162.1 of the Criminal Code, every person who knowingly or recklessly publishes, distributes, transmits, sells, or makes available an intimate image of a person without their consent, is guilty of an indictable offence and liable to imprisonment for up to five years.

The young man who was the focus of my February blog post had been found guilty of this offence, but he was not convicted. What followed publishing my blog post was also an interesting learning experience: I was contacted online by someone purporting to be a “family friend” of the accused and I was asked by this “friend” to remove the blog post. A quick Twitter search indicated that this person was a “designer of data privacy technologies”, a “data destruction expert”, and an “oyster-shucking champ”. I learned that this “friend” had also contacted a student reporter/opinion writer at the McGill Daily and asked her to take an article about the young man’s offences offline. Furthermore, since the Radio-Canada article, search engine results of this young man’s name mysteriously generate numerous “filler” websites that associate his name with vague and abstract mentions of community work, human rights, family, and peanut butter products.

The “right to be forgotten” or “data privacy”, were not rights I instinctually wanted to associate with the people who surreptitiously filmed their sexual encounters and shared the footage with their friends. I felt strongly that it was the subjects, not perpetrators, of this invasion of privacy who were the ones in need of “data destruction” services. In an ironic ending to my story, it was the man that had invaded the privacy of the young women he had filmed who was feeling the consequences of a lack of control over his online reputation.

Furthermore, while I believed in the accused or the offender’s right to move on from the stigma of crime, it seemed unfair that those who could afford to hire private “data destruction experts” would be able to move on with their lives more easily than those who could not. The Internet is a continually growing player in our professional and social reputations; being able to hide a past mistake from the online world is a huge benefit. But of course, this certainly isn’t the only privilege experienced by the accused with means.

I suppose this was all a more personal way for me to learn about what I knew theoretically to be true: that the story of “digital rights” and “online privacy” is not and will not be dominated solely by cyber-social-justice-warriors and the kinds of privacy advocates that want Facebook to stop listening to your conversations. And this probably isn’t a bad thing. Just like it isn’t a bad thing that police must properly obtain warrants to invade the privacy of child-predators and drug-traffickers by searching their Internet activity or text conversations.  Privacy will and should continue to feature on both sides of every debate, on the side of the child-predator, the consumer, the political dissenter, and those who themselves invade the privacy of others.



[1] Of course, as a study from Dalhousie University discusses, “cyberbullying”, including “revenge porn”, is rarely the only factor involved in suicides like Amanda Todd’s. However, this doesn’t deter from the reality that in-person bullying, mood disorders, and depression can be instigated and/or worsened by online bullying.

[2] Michael Plaxton, “Women deserve more than a revenge porn law”, The Globe and Mail (22 November 2013), online: <>.

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