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Law Times • may 14, 2018 Page 13 www.lawtimesnews.com Traditionally, product li- ability cases involve some sort of physical injury or a product that poses some risk of damage to person or property. But in cybersecurity cases, a breach or unintended disclosure doesn't necessarily result in physical damage or injury, she says. Instead, the loss is usu- ally economic, which in typical product liability tort cases is not recoverable unless the product is actually dangerous and poses physical risk or injury. "I think what you're really seeing a lot in cybersecurity cas- es is really an allegation not that the plaintiff has actually been in- jured but that somehow they're at some risk," she says. The 2012 Ontario Court of Appeal case Jones v. Tsige is an example of a relatively new de- velopment. It recognized a new cause of action in privacy tort: intrusion upon seclusion. "The tort that was recognized in that case has since gone on to be relied upon in a variety of circumstances that I don't nec- essarily think the court of appeal would have necessarily contem- plated when they decided Jones and Tsige," says Henderson. "One of the areas where we are seeing intrusion upon se- clusion and other privacy torts relied on quite a bit is in privacy class action. And I think there's been an uptick in that area and I suspect it's a trend that will con- tinue in the near future." From a business perspective, a contract is what will provide protections, says Thompson. Contracts allow them to build in protections and indemnifica- tions. But for an individual, all that's available at the moment is to read the waivers and to ex- ercise the option to pass on the purchase of any products that they feel might make them vul- nerable to cyberattack. Brown believes it's an issue that should be examined by policymakers. "It really ties in to other emerging issues around the use of artificial intelligence and ma- chine learning and driverless ve- hicles," he says. LT de-identified and adequate con- sents have been obtained and all the good things that go with the processing of that," she says. "There's a risk if you don't have proper indemnification, limitations in liability." Canada, Thompson says, lacks the European Union's re- quirement for transparency for decisions made by machines. In Europe, an individual denied a loan request or insurance fol- lowing a decision made through AI has a right to know how that decision is made. Although our privacy regime is different than that in Europe, Thompson says that approach is worth exploring, particularly since it's clear these technologies are being increasingly adopted. In addition to privacy con- cerns, Reynolds also sees the need to be wary of potential hu- man rights and ethical issues. In collecting and analyz- ing data, developers need to be aware of how that information is being used and what trends are expected to emerge from that to ensure no particular groups are being discriminated against. A risk factor could involve the use of an individual's eth- nicity to determine or predict behaviour. "That discussion has to hap- pen before we can get to con- tracting because, just like with privacy compliance, the orga- nizations entering the contract need to know what representa- tion they're expecting or they're giving on how they designed the program and what the out- puts will look like and how the program has been designed to avoid making decisions based on bias or based on prohibited grounds," says Reynolds. She says she doesn't believe specific legislation is necessary to address the concerns that AI, machine learning and the use of big data present. But Reynolds says current laws should be reviewed to en- sure that they are technology neutral or whether there are as- pects that need to be updated to be able to accommodate these new uses. "I don't think it's an area where the federal or provincial government should be legislat- ing on the technology because that will change so quickly it won't be able to keep up. I think the focus should really be on making sure all the other guid- ing laws are technology neutral," she says. Lyndsay Wasser, co- chairperson of McMillan LLP's privacy and data protection group and its cybersecurity group, sees a dilemma for law- makers in this area. While there is a need for pro- tection, she says, a big consider- ation has to be the impact that may have on business. "On the one hand, we don't want to dampen innovation and particularly when there are oth- er countries which are less con- cerned about consumer protec- tion who are charging forward and are going to end up the lead- ers," she says. "But on the other hand, there are the fears of some people at least about the ethical implica- tions and the potential conse- quences of not regulating." And until a balance that addresses both those issues is struck, lawyers are interpreting how the general principles of privacy law can apply to some new technologies, she says. Ahmad, too, says there is Continued from page 10 Continued from page 11 'AI is here to stay, blockchain is here to stay' room for clarity. "AI is here to stay, blockchain is here to stay. And it would be helpful for the regulators to pro- vide specific guidance. The leg- islation is sufficiently f lexible to address these issues today," he says. LT New cause of action FOCUS Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. 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Untitled-5 1 2018-05-08 5:03 PM Lyndsay Wasser says lawyers are interpret- ing how the general principles of privacy law can apply to some new technologies.

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