From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in Canadian Child Pornography Law

Abstract

The Canadian approach to privacy rights in one's body is embedded in the relationship between interests in privacy, bodily integrity, and human dignity. Clarifying these interests is complicated by Canada's middle-ground stance between the European "dignity-based" approach to privacy and the US "liberty-based" orientation. The Canadian approach is closer to the European model when intrusions upon the body are conceived as wholly or mostly non-consensual (e.g., strip searches, voyeurism, and most child pornography). However, once consent plays a potentially determinative rote, the US liberty-based approach gains ground. This reluctance to fully align dignity with privacy results in confusion about the scope of ongoing privacy interests in nude images, as evidenced by recent debates about the use of airport body scanners and the appropriate response to adolescent "sexting." The author argues that a clearer alignment with a dignity-based approach emerging in Canadian child pornography jurisprudence would better address the harms caused by misuse of photography, as applicable to both children and adults.