Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures
Indiana University - Kelley School of Business - Department of Business Law; Harvard Kennedy School Belfer Center for Science & International Affairs; Center for Applied Cybersecurity Research; Stanford Center for Internet and Society; Stanford Law School
April 28, 2009
American Business Law Journal, 2012
Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression - both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This Article addresses this omission by using comparative case studies from the United States, the United Kingdom, France, and Germany to analyze areas of convergence and divergence in privacy rights. The focus of each case study will be the right of privacy afforded to public figures, particularly those at the cusp of the classic definition, i.e., involuntary or temporary public figures. Though some semblance of a bright-line rule has evolved for voluntary public figures, involuntary public figures in the United States are accorded spotty protection varying by jurisdiction. Lacking guiding Supreme Court precedent, this has led to divergent practice especially regarding the definition of "public interest," which is fundamental to defining the limits of freedom of expression. Thus, this Article draws from the comparative analysis to build a proposal for a clarifying definition of the public interest that helps delineate privacy rights, as well as arguing for the adoption of a graduated structure of privacy protections for public figures along the lines of the German and European Court of Human Rights models.
Number of Pages in PDF File: 111
Keywords: Privacy, comparative law, public figure, media, first amendment
Date posted: May 5, 2009 ; Last revised: May 13, 2014