Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places

100 Pages Posted: 27 Jun 2010 Last revised: 15 Oct 2012

Andrew Jay McClurg

University of Memphis Cecil C. Humphreys School of Law

Date Written: June 25, 2010

Abstract

“Public privacy” sounds like an oxymoron, but this article asserts a tort theory to enforce just such a right under limited circumstances. Traditionally, courts have refused to recognize a right to privacy in a public place. The author argues that this lack of protection needs to be revisited in a world where good taste and decency have vanished from journalism/entertainment and video cameras and other electronic privacy-invading devices have proliferated.

Analyzing the three foundations of privacy — secrecy, solitude, and anonymity — the author explains how and why they need, and are worthy of, legal protection even in some public contexts.

Specifically, he proposes a redefinition of the privacy tort known as “intrusion” (as incorporated in the Restatement (Second) of Torts) that would allow recovery for highly offensive instances of intrusions in public places. He enlists a multi-factor test to assess the offensiveness of intrusive conduct, a standard that balances privacy interests against the countervailing interests of free social interaction and speech.

Suggested Citation

McClurg, Andrew Jay, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places (June 25, 2010). North Carolina Law Review, Vol. 73, 1995; University of Memphis Legal Studies Research Paper No. 32. Available at SSRN: https://ssrn.com/abstract=1630537

Andrew Jay McClurg (Contact Author)

University of Memphis Cecil C. Humphreys School of Law ( email )

1 Front Street
Memphis, TN 38103
United States

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