The 'New' Privacy and the 'Old': Is Applying the Tort Law of Privacy Like Putting High-Button Shoes on the Internet?
Diane Leenheer Zimmerman
New York University School of Law
February 28, 2011
Communication Law and Policy, Forthcoming
NYU School of Law, Public Law Research Paper No. 12-21
Commentators have been critical of the inadequacies of the privacy tort law to deal with personal information circulated on the internet, particularly on social networking sites. This paper argues that, although technological change has created new concerns about privacy, the concerns are not fundamentally different from those raised by the "old" media, and they do not render the existing law, with its delicate balance between privacy and free speech, beside the point. The same considerations remain in play that have been recognized for more than half a century. There are, however, certain new elements that contribute to the anxiety about privacy and that, at the same time, make it more difficult to know how to respond to them. First is a distinct change in what individuals are actually willing to reveal to a broad range of acquaintances and strangers; second is the disintermediation of the "editor." Today, much of what is "published" is published by individuals who do not filter their decisions through the old protections of industry standards and who are not constrained by the need not to offend a paying audience. Both make the exposure of highly intimate or embarrassing material more likely, but do not necessarily create a case for giving those injured by the exposure greater rights to control its publication and use after the fact. Solutions, therefore, must be found outside the realm of privacy tort law.
Number of Pages in PDF File: 34Accepted Paper Series
Date posted: March 28, 2012 ; Last revised: March 13, 2014
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