Intrusion upon Seclusion, Gender, and the Privacy Fallacy
Abstract
This contribution uses a Canadian class action involving unauthorized access to women’s hospital records as a lens through which to explore the privacy fallacy described in Cofone’s book. Although the data at issue included sensitive health information, courts minimized the severity of the intrusion by treating childbirth information as insufficiently private, relying on assumptions that women commonly share such details publicly.
The analysis argues that this reasoning exemplifies the contradiction outlined in The Privacy Fallacy: privacy is recognized as valuable in the abstract but legally protected only when harms meet narrow, outdated thresholds such as being “highly offensive.” The restrictive interpretation of the intrusion‑upon‑seclusion tort reflects gendered biases about what kinds of information deserve protection and reinforces structural inequalities embedded in legal doctrine.
The text calls for modernizing privacy torts to reflect contemporary understandings of data practices and the social contexts in which privacy expectations arise. It argues that without such reform, courts risk perpetuating discriminatory outcomes and failing to address harms that are contextual, relational, and deeply tied to power imbalances.
Keywords
Class action litigation – Contextual privacy harm – Gender bias – Health data privacy – Intrusion upon seclusion – Judicial bias – Privacy torts