Recasting Privacy Torts in a Spaceless World

Abstract

To date, space has defined our cultural, normative, and legal notions of privacy. The tort law of privacy, specifically the tort known as public disclosure of private facts, is intimately bound to an experience of physical space. Spatial linchpins such as physical location, seclusion, and secrecy factor prominently in assessing the existence of a reasonable expectation of privacy and thus the strength of a tort claim. This article explores the intersection between the public disclosure tort and online social networking websites in order to shed light on the inadequacies of current privacy tort law. In response to these weaknesses, a factor-based approach is articulated that divorces the traditional privacy tort analysis from now-outdated conceptions of space, subject matter, seclusion, and secrecy. Calling for the contextual analysis of the information breached, the breach, and the outward actions of the aggrieved, this new construct provides an organized framework for analyzing disclosure-related privacy harms on social networking sites and beyond.