From Privacy as a Contract Clause to Privacy as Right: Regulatory Next Step

When: Friday, April 21, 2023, 12:00 PM - 2:00 PM
Where: Room 1.2, Centre For Commercial Law Studies 67-69 Lincoln's Inn Fields London WC2A 3JB

Ignacio Cofone is an Assistant Professor and Canada Research Chair in Artificial Intelligence Law & Data Governance at McGill University's Faculty of Law, where he teaches Privacy Law, Artificial Intelligence Regulation, and Advanced Obligations. His research focuses on privacy harms and on algorithmic decision-making to explore how the law should adapt to technological and social change. In his current projects, he examines how to evaluate standing and compensation in privacy class actions and how to prevent algorithmic discrimination.

Professor Cofone presented his forthcoming book on Privacy. Privacy is no longer about regulating choice. It is about regulating power. And addressing power doesn’t require presenting choices to the powerless. Rather, it requires holding the powerful accountable for what they do. We have built privacy law based on contract law, with a large room for consent provisions, and we should build it based on tort law instead. Contracts work for standard exchanges and agreements. But privacy “contracts” are problematic because their subject matter is opaque to the parties. Direct regulation is also needed, but the type of direct regulation depends on what privacy law is built on: we need not the type of regulation that reinforces the meeting of the minds (because you can’t reinforce something that doesn’t exist) but the type of regulation that reduces risks of harm. To address the problem, we need to hold corporations accountable for the consequences of their data practices, not for the checklists they complete or for the empty agreements they obtain from users.