Date: Fri, 13 Oct 2006 16:17:31 -0400

From: Jason Neyers

Subject: Liability for data security breaches

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?).

Tsachi Keren-Paz wrote:

First - negligence is not a new tort, and although data security breaches are a new problem, liability for breaches of data security simply recognizes duties latent in negligence. (This argument is weakened as one must establish that pure economic losses are recoverable in this situation - suggesting that data security breach liability is new).

According to this logic, the claim in Bhaduria could be recasted as a negligence claim. In fact, I argue that it should in a forthcoming book "Torts Egalitarianism and Distributive Justice". In Ch. 7 I argue that we could and should conceive of discriminatory behaviour as potentially negligent, and examine whether there was breach, and whether there was duty.

I have some doubt, though, whether Canadian courts would follow this path. They might argue that duty should be denied due to the policy of not circumventing the comprehensive legislative scheme that strikes the balance between (allegedly) discriminators and victims.

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