Reviving Implied Confidentiality

Abstract:     
The law of online relationships has a significant flaw — it regularly fails to account for the possibility of an implied confidence between Internet users. The established doctrine of implied confidentiality has, without explanation, almost entirely disappeared from online jurisprudence in contexts where it has traditionally been applied, such as with sensitive data sets and intimate social interactions.

Courts’ abandonment of implied confidentiality in online contexts should have been foreseen. The concept has not been developed enough to be consistently applied in environments that lack obvious physical or contextual cues of confidence, such as the Internet. This absence is significant because implied confidentiality could be the missing piece that helps resolve the problems caused by the disclosure of personal information on the social web.

This article urges a revival of implied confidently by identifying from the relevant case law a set of implied confidentiality norms based upon party perception and inequality that courts should, but are not, considering in online disputes. These norms are used to develop a framework for courts to better recognize implied agreements and relationships of trust in all contexts.

Number of Pages in PDF File: 54

Keywords: confidentiality, implied confidentiality, privacy, contract, Internet

Accepted Paper Series